LIBRARY OF CONGRESS. 



Chap. _. Cop yrig ht No. 

Shelf..4_. 



UNITED STATES OF AMERICA 



F AMERICi^ 



X^N^'' 



A CONDENSED MANUAL 



ON 



PATENTED INVENTIONS 



WHAT TO DO 

AND 

WHAT NOT TO DO 
TO INSURE SUCCESS TO THE INVENTOR 

ALSO 

A Sumrriary of the Patent-Laws and Require- 

7nents of Canada a7id Foreign Countries in 

Regard to the Issue and Retention of 

Letters Patent ; and Bearing upon 

the Duplication of United 

States Patents 



^ 



BY 



MARTIN L. ,WARE 1^^a^'<^ 



New York 
1897 



FEB111897I ^^ 






<^ /V/v ' \ \\ Q^Y^Q^S^^ ^ ^^ V . 



<J 






< 



Copyrigrht, i8q7, 
By M. L. W. 



CONTENTS 





'. PART FIRST. 




CHAPTER. 


PAGE. 


I. 


Patented Inventions. 


9 


II. 


Expert Searches and Opinions. 


20 


III. 


Patent Agencies. 


24 


IV. 


Foreign Patents 


31 


V. 


Canadian Patents. . . . . 


49 


VI. 


English Patents 


67 


VII. 


German Patents. 


83 


VIII. 


French Patents 


92 


IX. 


Patents in Austro-Hungary. . 


98 



PART SECOND. 

CHAPTER. PAGE. 

I. Selling the Entire Patent-Right to an 

Invention. ..... 105 

II. Assigning to Manufacturers with 

Royalty to the Inventor. . .121 



IV CONTENTS. 

III. Manufacturing by the Inventor, while 

Retaining Exclusive Ownership of 

the Patent. ..... 130 

Selling Minority Interests in the 
Patent before Starting the Manu- 
facture. . . . . . .132 

IV. Organization of a Stock Company for 

the Manufacture or Use of a Pat- 
ented Invention. .... 134 
V. Infringement of Patent-Rights. . . 141 
VI. Reissue of Patents. .... 168 



PART FIRST 



MOTHER SHIPTON'S PROPHESIES. 

Published in I48§. 

Carriages without horses shall go, 
And accidents fill the world with woe. 
Around the world thought shall fly 
111 the twinkling of an eye. 

Waters shall yet more wonders do 
Now strange, yet shall he true. 
The world upside down shall be, 
And gold be found 'mid roots of trees. 

Through hills and mountains man shall 

ride. 
Nor horse nor ass be at his side. 
Under water man shall walk, 
Will ride and sleep and talk. 



Viii MOTHER SHIPTON'S PROPHESIES. 

In the air men will be seen. 



In black, in white, in green. 

Iron in the water some day will float 

As easy as a wooden boat. 

Grold shall be found 'mid stone, 

In a land that's now unknown. 

Fire and waters will more wonders do. 

England will at last admit a Jew. 



PATENTED INVENTIONS, 



CHAPTER I. 



PATENTED INVENTIONS. 



The idea has very generally prevailed, until 
within the past few years, that the mere ownership 
of a patent was equivalent to a prospective for- 
tune ; but with a constantly increasing knowl- 
edge among inventors of the inevitable difficulties 
to be met and overcome, together with the several 
adjuncts demanded sooner or later by the inventor, 
or others acting for him, to insure a successful de- 
velopment of the patent, there is gradually creep- 
ing into the public mind the question — Do patents 
pay the inventor? And in connection with this 
query comes a realization of the fact, that there 
is a very strong dividing line between the allow- 
ance of a patent, and the subsequent sale, or other 
disposition of it. Although a recent Commissioner 
of Patents estimates that seven-eights of the 
entire manufacturing capital of the United 
States is directly or indirectly based upon patents ; 
the statement is well authenticated that, on an 
average, only one patent out of every hundred 
pays the inventor. " The gains that accrue under 



lO PATENTED INVENTIONS. 

the joint efforts of the inventor and capitalist 
belong in most cases to the manufacturer who 
risks the capital to develop the invention.'' Those 
inventions which prove pecuniarily successful to 
the patentee are made so through good business 
management, control of some capital, and so 
thorough an understanding of the many complica- 
tions at once arising in this branch of business as 
will enable him to keep absolute control of his 
patent rights until a reliable course is opened, 
which will assuredly advance his own interests. 

As there are comparatively few professional in- 
ventors, the average inventor is liable to make mis- 
takes in his first efforts to advance his patent into 
public notice or general use, which in many cases 
will result in either the actual abandonment of the 
invention, or in curtailing the term of years for 
which the patent is allowed. 

We will first touch upon some of these initial 
difficulties and wrong procedures. 

When an inventor has made no arrangements 
for practically developing a patent before its allow- 
ance, or formulated any decided plans for his own 
course of action, the question inevitably presents 
itself as soon as letters patent are received : What 
course is to be pursued in order to bring the pat- 
ented conception to a paying issue? In many in- 
stances the first mistake is made in seeking assist- 
ance through the attorney who has prosecuted the 
application for a patent, which generally results in 



PATENTED INVENTIONS. II 

a useless correspondence and loss of time, for the 
reason, that it is not customary for patent law- 
yers to transact any business regarding the sale 
or other disposition of patent-rights ; or even to 
render an opinion respecting the commercial 
merits of an invention. In cases where the ser- 
vices of Patent Agents have been retained to procure 
a patent, there will be the greatest necessity for 
extreme caution in any after correspondence.^ 

As though in answer to the many questions and 
perplexities which at once arise in the inventor's 
mind, each mail brings a flood of letters, postals 
and pamphlets, which may be divided into two 
separate classes. First, — Communications in dif- 
ferent forms from patent agencies, with methods 
for relieving the inventor from any further per- 
sonal trouble or inconvenience, and the assurance 
of large returns from the patented invention. 
Second, — Solicitations of patronage for " dupli- 
cating the valuable patent *' in one or more foreign 
countries. 

It is very necessary for the inventor to under- 
stand the requirements and limitations that 
will be developed sooner or later through the 
agency of many firms making patent business a 
specialty, as the mistake is often made at the very 
threshold of the inventor's efforts to develop a 
newly acquired patent, of either actually placing 
it in the hands of a patent-broker, without first ob- 

» See Chapter III. 



12 PATENTED INVENTIONS. 

taining references as to business standing and 
business methods, or in entering into a corre- 
spondence, which at least will entail loss of time 
and money and may eventually endanger the patent 
as well. 

In regard to the '' second class " of these com- 
munications — foreign patents — another mistake is 
frequently made by patentees in at once entering 
into business arrangements for procuring the al- 
lowance of a Canadian, or one or more foreign 
patents, without first taking the precaution of per- 
sonally understanding the patent-laws which are 
enforced in those countries, the knowledge of which 
would naturally affect the inventor's decision in re- 
gard to the advantages or disadvantages ^w^hich 
would probably accrue from holding more than one 
patent on the same invention. 

While cooperation seems to be indispensable for 
the success of a patent in most cases, it must be the 
cooperation of trustworthy capitalists, and this can- 
not be obtained hurriedly. It takes time and labor 
to convince others of the value of a new invention, 
and among the first mistakes liable to be made 
by the patentee may be included that of acting up- 
on the idea that a patent, if remunerative at all, 
must prove so within a comparatively short space 
of time. When the fact is, prejudice against nov- 
elty, merely as such, must always be looked for 
and accepted as part of the initiatory work in con- 
nection with all patents; although many of them 



PATENTED INVENTIONS. 13 

may be destined in the end to be universally 
adopted. Patented inventions at the present day 
prove no exception to the difficulties which have 
beset the most valuable discoveries and inventions 
from time immemorial. Let us take a cursory 
glance at a few of the conveniences and necessities 
which enter into general use in our own time, but 
which encountered the most incredible opposition 
at the beginning. 

" The man who brought us, many years ago, the 
ordinary cleanliness and civilization of using forks, 
became the object of an absolute persecution. His 
innovation was taken in the worst possible spirit 
by English society, which worked itself into a rage 
of contemptuous indignation that seems well-nigh 
incredible to us. He was sneered at in society, 
satirized on the stage, rebuked from the pulpit, and 
reproved by grave writers. The same experience 
befell the first men who used in England another 
convenience that is now universal — the umbrella. 
Its use was considered unmanly, and in the middle 
of the eighteenth century, Jonas Hanway, who car- 
ried and used an umbrella, was mobbed in the 
streets and called after by small boys." ^ 

While in regard to complicated machinery^ sci- 
entific and mechanical inventions, many electrical 
discoveries, and, in fact, all of the greatest inven- 
tions of any age, which have proved to be of ines- 
timable value to the world, have been — without 

-Florence Fenwick Miller, in London News, Feb., 1896. 



14 PATENTED INVENTIONS. 

exception — incredulously received at first, and 
have taken years of toil and perseverance, with a 
corresponding outlay of money, to bring into prac- 
tical use. The electric telegraph is a well-known 
example. "The idea was conceived by Samuel 
Morse on a voyage from Havre to New York in 
1832. He unsuccessfully endeavored to obtain a 
patent upon his conception in England, but was 
awarded a United States patent in 1837. After 
perfecting a model, he exhibited the working re- 
sults to Congress, with the hope of procuring as- 
sistance from the Government in order to bring it 
to a practical issue. But he struggled along un- 
successfully and in poverty until the year 1843, 
when, as he had almost yielded to despair and aban- 
doned his invention. Congress at midnight, and 
during the last minutes of the session, appropriated 
$30,000 for an experimental line between Baltimore 
and New York.*' From that time its ultimate suc- 
cess was assured, and it became the great factor in 
the world's prosperity and advancement. 

A few years previously, just as great difficulties 
had been encountered in carrying through the pro- 
ject of George Stephenson for " carriages propelled 
by steam on iron rails, and obtaining the support 
of Parliament in the construction of the Liverpool 
and Manchester Railroad." It was during the dis- 
cussion of this bill that Sir Isaac Coffin made a 
speech denouncing the project as a most flagrant 
imposition. He said : " Railroad trains would take 



PATENTED INVENTIONS. 15 

many hours to perform the journey between Liver- 
pool and Manchester, and in the event of tlie 
scheme's success, what, he would like to ask, was 
to be done for all those who had advanced money 
in making and repairing turnpike roads ? What 
was to become of coach-makers, harness-makers 
and coachmen, inn-keepers, horse-breeders and 
horse-dealers ? Was the House aware of the smoke 
and the noise, the hiss and the whirl, which loco- 
motive engines, passing at the rate of ten or twelve 
miles an hour, would occasion ? Neither the cattle 
ploughing in the fields, or grazing in the meadows, 
could behold them without dismay. Iron would 
be raised in price one hundred per cent., or, more 
probably, be exhausted altogether. It would be 
the greatest nuisance, the most complete disturber 
of quiet and comfort, in all parts of the kingdom, 
that the ingenuity of man could invent." The mo- 
tion, however, was pressed by other members, and 
the bill was carried by a vote of about two to one, 
and after incredible difficulties of construction, the 
Liverpool and Manchester Railway was ready to 
be opened September 5th, 1830. A week earlier, 
August 28th, 1830, the first trial trip with steam 
took place on the Baltimore and Ohio Railroad, 
which was to carry out Washington's favorite idea 
of uniting the Atlantic Seaboard with the Ohio 
River." ' 



* Elizabeth Wormly Latimer, " England in the 19th Cen- 
tury," p. 91. 



l6 PATENTED INVENTIONS. 

Time to Allow for Working or Disposing of a 

Patent. 
Mr. Arnold, in the Inventive Age, says : " New 
and valuable inventions do not introduce them- 
selves; everyone who has had practical experience 
will understand this point. An invention may have 
genuine merit, but people do not run after it. Not 
only that, they will refuse to adopt it unless it has 
extraordinary merit, and in some way be proved 
to be of advantage to identify themselves with it. 
People are suspicious of new devices, the reliability 
of a new article must be demonstrated by testing 
it in actual use before it will be generally accepted. 
Inventions, even of the highest order of merit, fre- 
quently have to be forced upon the market, and the 
inventor sooner or later realizes the fact that the 
task of personally developing a patent, or disposing 
of it, wholly or in part, to capitalists, will be ex- 
tremely slow, even with the best management." 
Mr. Bessemer, the inventor of the valuable process 
for making steel, testified before the Parliamentary 
Committee in England *^ that it took from eight to 
ten years to get an invention introduced generally." 
Mr. Richards says : '' I am quite sure if 3^ou go 
through New England and investigate the history 
of the more prominent classes of automatic ma- 
chinery used there, you will find that it is emi- 
nently true that it takes from five to twenty years to 
develop a class or new line of machinery. It is well 
known that in a great many cases, probably the 



PATENTED INVENTIONS. I? 

majority of cases, useful inventions are discovered 
and made known before there is a market for them, 
and that sometimes the period required for creat- 
ing a demand uses up the greater part of the life 
of the patent."^ For instance, the inventor of 
the roller-skate is said to have made over ;^2oo,ooo, 
notwithstanding the fact that his patent had nearly- 
expired before its value was appreciated. 

Financial Requirements, 

"Business men understand the fact, which in- 
ventors are often ignorant of, that patenting and 
establishing an invention is in the strictest sense 
a * financial venture.' " Unless an invention comes 
within the patentee's established manufacturing 
business, it cannot be brought to a commercial 
completeness and thrown upon the market, until 
the inventor can command enough capital to take 
him through the different stages of making it a 
working success — either in getting the patent ac- 
cepted by capitalists, through sale, or manufac- 
tured with royalty — or in obtaining the coopera- 
tion of moneyed men in starting the new industry. 
It is true that very simple inventions do not 
require a great outlay of capital to develop and 
promote them ; but the majority of inventions 
are not simple ones. A contributor to the Inven- 
tive Age says: "After the invention is made, per- 

^ Extract from address before a meeting of the ** Manu-» 
(acturers* ^nd Inventors' Association," 



l8 PATENTED INVENTIONS. 

fected, and demonstrated to be of value, it must be 
manufactured on a commercial scale, in order to 
be available and brought to the attention of the 
appropriate users, or put upon the market. Arti- 
cles of manufacture must be made in quantities, 
and proper machinery for making them must be 
supplied. The invention of a new machine re- 
quires that the machine be built, and it takes 
machinery to make a machine, a shop and work- 
men and materials. And these cost money. It 
also requires machinery to make an article. One 
cannot tell whether an invention is really valuable, 
until it is made in a shape and finish that will in- 
sure a recognition of the superior merits claimed 
over other inventions of similar kind already in use." 

Another authority^ says: ^^ Meritorious inventions 
are quite as likely to be made by one class of indi- 
viduals as another, some of the best of them being 
produced by inventors who have not only little or 
no experience in patent practice, but who are too 
poor to develop their inventions, and especially \.o 
defend them in case infringement suits follow. 

" It is an almost unheard of thing for an inventor 
to succeed commercially, proceeding single handed. 
And it seems to be absolutely necessary that the 
labors of the poor inventor should be allied with 
the capital and practical methods of business men 
cooperating with him, in order to bring a patent 
to a financial success.'* 

^ Mr. Richards, in Inventive Age, 



PATENTED INVENTIONS. I9 

Even Edison's wonderful inventions were a fail- 
ure for a long time, until *^ shrewd capitalists, 
realizing the amazing possibilities of his concep- 
tions, took interest in his patents and advanced the 
necessary capital, making him to-day the most 
successful inventor the world has ever produced. 
His inventions are numbered by the hundreds, 
and up to this date he has been awarded 711 
patents. 

The patents which sooner or later prove pecuni- 
arily successful, are generally grounded upon one 
or more of these significant requirements: 

(i.) They have possessed enough substantial 
merit over others in use to create a demand. 

(2.) They have saved either time, money, or 
manual labor by new machinery or parts of a 
machine. 

(3.) They have catered to popular comfort or 
popular recreation. 

And in each and every case capital has been 
controlled to develop, manufacture, and place suc- 
cessfully upon the market. 



CHAPTER II. 

EXPERT SEARCHES AND OPINIONS. 

Although Letters Patent are supposed to be in 
themselves a powerful, if not a conclusive assump- 
tion, of the validity of the patent, the patent-office 
deed, in reality only affirms that the patent-office 
examiners have not been able to discover that the 
new device conflicts in any way with patents pre- 
viously issued and still in force. " When a new 
field is opened, as was the electric department not 
many years ago, it is comparatively easy to ascer- 
tain with a probable degree of certainty, whether 
the new application will collide with other claims 
already patented." But in many cases it is impos- 
sible for the examiners to be absolutely certain of 
the novelty of the invention, for the reason that 
there is not enough time or assistance in the 
present crowded condition of the patent-office to 
warrant the enormous amount of research, in con- 
nection with practical and often mechanical knowl- 
edge that is required, in order to render an opinion 
that will stand no chance of being disputed. In 
some lines of invention many patents for improve* 

2o 



EXPERT SEARCHES AND OPINIONS. 21 

merits are constantly being applied for, and in con- 
sideration of the frequent change of examiners, 
difficulties are rapidly increasing, and the validity 
of a patent more frequently questioned. 

When the inventor has had a ^^ preliminary ex- 
amination " made at the patent-office by a com- 
petent attorney, before sending in his application 
for a patent, he ought to know of the existence of 
every patent which trespasses in any way upon his 
new conception. But when this has been neglected, 
and in consideration of the doubtful protection 
awarded by letters patent, it will certainly prove 
of great advantage to the inventor to have a 
thorough ^^ search *' instituted at the patent-office 
in connection with all inventions in any way analo- 
gous to his own. 

This should be one of the first steps taken by the 
inventor after the allowance of the patent, and 
great care should be taken in avoiding the danger of 
being led, by low fees, or other uncertain advantages 
claimed, into placing this business in the hands of 
unknown and irresponsible patent attorneys or 
agencies. This **search," in order to be of any value, 
must be conducted by a competent expert in this 
branch of patent business at Washington, who will 
make the examination exhaustive and successful. 
When it is finished he will mail to the inventor 
copies of any patents that may have been found, 
whose claims might be held to be infringed by 
the new invention, also an "Opinion" stating 



22 PATENTED INVENTIONS. 

clearly and succinctly whether the patent in ques- 
tion could be legally held to trespass on any of these 
prior claims, and if so, in what way and to what 
extent. 

The patentee will thus be enabled to meet one of 
the first objections that is liable to be made when 
the cooperation of capitalists is sought — ^' That his 
patent will conflict with others known to be in ex- 
istence, although perhaps never brought to a prac- 
tical issue, and into public notice." Copies of 
prior patents held by the inventor, with the '* Opin- 
ion " of an expert upholding the novelty of the new 
invention, will be convincing proofs of its entire 
validity. On the other hand, if the expert's in- 
vestigations develop Xh^ probability of infringement- 
suits arising by reason of prior and similar claims, 
when the invention obtains general publicity 
through its manufacture, the inventor has the op- 
tion of either first obtaining a re-issue of the patent 
to cure defects, or running the risks to be incurred 
in proceeding with the manufacture. 

Patentees are advised to obtain information in re- 
gard to these prior patents, not only for their imme- 
diate advantage, but because the law will not exon- 
erate them from infringement for the reason, that 
the natural supposition that letters patent always 
gave full protection to the inventor for a certain 
term of years, caused the neglect in obtaining 
knowledge of the existence of the patent or pat- 
ents which were infringed, and which were never 



EXPERT SEARCHES AND OPINIONS. 23 

known outside of the patent-office, or had only an 
existence in some obscure publication.^ 

When patent-rights are at once transferred to a 
certain class of agencies, this " Search " is the rock 
upon which the hopes of many inventors are 
wrecked, and is really the first danger which 
threatens the value of the patent. 



^ The charges for expert " Searches and Opinion '* are 
about $25. 



CHAPTER III 



PATENT AGENCIES. 



This class of ^'business promoters" understand 
perfectly the ideal value inventors are apt to place 
upon their patents, as well as the unforeseen diffi- 
culties to be encountered, as soon as an attempt is 
made to bring them to a financial success. So 
they come forward speedily from all parts of the 
United States, and a little later from Canada and 
Europe as well, with communications to patentees, 
whose addresses are taken from the Official Gazette^ 
issued weekly from the patent-office. They are in 
various forms, postal cards, letters, circulars, book- 
lets and even contracts made out and ready for 
signature. Many patentees entrust their patent to 
some one of these agencies soon after its allowance, 
agreeing to the terms which sooner or later are 
demanded. 

While others wait for a few weeks, or perhaps 
months, when, becoming discouraged through their 
personal efforts to work or dispose of the patent, 
yield to the temptation of trying to secure large 
profits quickly and without personal effort 
through the agency of one of the many corre- 
spondents, who have most persistently followed up 
the opening wedge of the first communication by 

24 



PAtENt AGENCIES. 25 

Others in various forms. All of these tend to im- 
press upon the mind of the inventor the recog- 
nized value of the invention, and the advantages 
to be gained through superior facilities for the 
work enjoyed by them. 

There are undoubtedly business firms making 
the sale of patents a specialty, who conduct their 
business on reliable and honorable principles. But 
it is a well-known fact among experienced inven- 
tors,' and with those who keep in touch with the 
general working of patented inventions, that there 
is a misleading tendency in the letters and docu- 
ments sent broadcast by many patent agents, either 
through the mere wording of letters and proposals, 
or in the substance of an agreement expressed so 
indefinitely and vaguely, as to legally permit the 
terms to be fulfilled as best suited to their business 
methods. 

These patent agencies conduct their business un- 
der a variety of names, and employ many different 
methods of striking ingenuity to attract inventors, 
but the underlying feature of nine out of ten of the 
propositions made, is the " advance fee," which is 
demanded from the inventor generally at the outset 
**to defray his portion of necessary expenses," which 
are sure to arise in some form. 

This immediate outlay is usually required for a 
** Search of the Records at Washington, in order to 
test the scope and validity of the patent," and agen- 
cies often terminate their business with the inven- 



26 PATENTED INVENTIONS. 

tor just as soon as he complies with the request to 
forward his share of the expense to be incurred. 
Sometimes a brief and useless correspondence fol- 
lows, which eventually stops altogether. 

Again, the exaction of this fee will be found hid- 
den or disguised most ingeniously in the first com- 
munications. For instance, postals are received, 
inquiring merely whether the valuable patent is 
for sale. The inventor replies it is for sale. How 
much will you give for it ? The answer probably 
comes for some large sum, " provided the scope 
and validity are all right." The next step in 
the correspondence will develop the neccessary 
"search" at Washington before the final consum- 
mation of the sale, which will be instituted at once 
upon the receipt of twenty-five dollars. Again, 
a correspondence with a patentee has been in sub- 
stance as follows : " If it is your desire to sell the 
whole patent, or to sell it by territory, particularly 
the Pacific Slope right, give me your estimate of the 
value. We believe we can readily effect a sale, and 
desire to call your attention to the fact that we do 
not belong to the class of patent agents who make 
their money by exacting an advance fee." But the 
early development of this correspondence opened 
up the necessity for an " u7iforeseen outlay," which 
the inventor was requested to share. The patent 
was said to have been sold for five thousand dol- 
lars, a portion of which had been deposited with 
the agency. But in the meantime the " purchaser " 



PATENT AGENCIES. 2? 

had been advised to request a " Search '* made at 
Washington before paying the remainder due upon 
the purchase, in order that the validity of the 
patent might be unquestioned. The inventor for- 
warded the amount demanded to meet his share of 
the expense, and nothing further was heard from 
the agency. 

Some of these firms first gain the confidence of 
the inventor by offering to make a gratuitous esti- 
mate of the value of the patent, and when this is 
requested, the figures given often prove exceed- 
ingly bewildering to the inexperienced inventor ; 
they not only exceed his most sanguine expecta- 
tions, but he is told that this amount can probably 
be realized within ninety days of the sale, if the 
patent is placed in the hands of their agency. 
Often there follows a mass of literature advertising 
the many facilities for promoting the sale of 
patents. 

Sometimes a contract is actually made out, and 
sent to the patentee with the request to sign and 
execute as soon as possible, as ** capital is waiting 
ready to invest in just such patents, and it only 
needs to be brought to the attention of capital- 
ists,*' but the inventor must advance twenty dol- 
lars to assist in this advertising, which can be en- 
closed in the contract. The advertising in many 
cases is extended, so as to require a model, an en- 
graving or plate of the invention, with which to 
illustrate it, and perhaps thousands of circulars. 



^8 t>AtENtEt> INVENTIONS. 

the expense of which must be shared by the in- 
ventor. 

The experience of many patentees has led to a 
recognition of the fact, that in very few instances 
has a satisfactory disposition of the patent been 
made through ^^ agencies," and although they 
often do actually fulfill the agreement made with 
the patentee, the terms are frequently so stated as 
either to promise but little to the inventor, or they 
are not sufficiently qualified to protect the inventor 
against loss or any illegal procedures which might 
arise in connection with the proposed sale. For in- 
stance, agents sometimes make the attempt to ef- 
fect a sale after the advance fee has been received, 
but according to methods which enable them to 
act only in accordance with the ivording of the con- 
tract, and this necessitates no serious efforts to 
advance the inventor's interests. A customary way 
is to send a copy of the patent to a few manufac- 
turers with a request ** to examine the same, and if 
they wished to purchase, an agent would be sent 
to close the bargain." Again, agencies have sold 
*^ State Rights " for inventors, taking in exchange 
farm lands, which have proved to be not only 
worthless, but an actual expense to the inventor in 
the annual payment of the assessed taxes. 

It is to be hoped that there will be established 
in the near future a sufficient number of reputable 
and legitimate agencies to meet the pressing need 
of the majority of our inventors ; but while this 



PATENT AGENCIES. 29 

branch of business \^ generally conducted according 
to untrustworthy methods, inventors are advised to 
learn the character and business-standing of a 
patent agency before entrusting to it any business 
in connection with their patent. There are but 
few ways of accomplishing this that will prove 
satisfactory. ^^An inventor may find that the busi- 
ness of an agency with the banks is entirely satis- 
factory, or that it is rated financially responsible 
by commercial agencies, like Dun and Bradstreet, 
and yet prove to be untrustworthy in its deal- 
ings with the inventor."^ The course that has 
proved to be the most successful, is that of stipu- 
lating at once with the firm, whose services the in- 
ventor may desire to retain, that all money and 
legal transactions are to be submitted to the pat- 
entee's attorney, living in the place where the 
patent agency has its principal office. If the 
agent's methods are not trustworthy and strictly 
** above-board," these terms will not be accepted, 
and possibly no further notice taken of letters from 
the inventor. Another course, sometimes taken, is 
that of requesting the patent firm to send names 
and addresses of half a dozen patentees for whom 
they have, during the past year^ sold patents for 
cash (not exchanged for farms or merchandise), 
and then thoroughly investigate all these refer- 
ences. 

Strenuous efforts are being made by many friends 

J Inventive Aze^ 



30 PATENTED INVENTIONS. 

of the patent system to warn inexperienced in- 
ventors of the dangers that threaten their patent 
in this direction, and it has become the custom 
with some patent attorneys in our large cities to 
inclose a circular in every copy of letters patent 
mailed to their clients. A part of one of them is 
as follows : 

'During a practice of nearly twenty- five years I have 
seen but one factor of success in disposing of patents, and 
that is the energetic and persistent efforts of the inventor 
and patentee, who knows the merits of his invention far 
better than any stranger can, and who should be able to 
explain the same intelHgently and forcibly. 

*' Under any circumstances, however, I cannot, with my 
present knowledge, advise you to place your interests in the 
hands of one of the many selling agencies, whose circular 
letters flood the mails each week. 

" My advice to you may be epitomized in a few words. 
Place no trust in any of these concerns, for the money you 
advance to any one of them is so much money thrown away. 
The great majority of these adv^ertisers have no special 
facilities for selling patents, and very many of them have no 
facilities at all. Depend upon your own efforts, or upon those 
of friends or agents who are well known to you, and of 
whose honesty and capacity you have ample assurance. 
Depend upon it, this is the only sure road to ultimate 
success." 



CHAPTER IV. 



FOREIGN PATENTS. 



The patentee is soon called upon to decide 
another important question — that of duplicating 
the patent in Canada, or one or more foreign coun- 
tries. The advisability of taking this course is 
most strenuously urged through communications 
from various solicitors and agencies, and often 
very liberal terms are held out as an inducement 
for so doing. But in consideration of the fact 
that many foreign patents are issued every year to 
American inventors that prove either invalid and 
utterly worthless to the patentee, or eventually act 
to the detriment of a home patent, for the reason 
that some essential law or legal mode of proceed- 
ure has not been complied with ; the inventor 
should post himself understandingly upon the 
technical requirements of the patent laws of differ- 
ent countries, before taking any steps in this direc- 
tion. These laws differ so essentially from our 
own, as to render the brief and insufficient accounts 
of them, which generally attract the attention of 
inventors, and are accepted as their guide, to be 
productive of an erroneous impression in regard 
to the advantages to be gained in holding foreign 

3t 



32 PATENTED INVENTIONS. 

patents. It is my purpose in this chapter to give 
a summary of some of the most important patent 
laws of foreign countries with the several require- 
ments which limit both foreign and United States 
patents. 

First in regard to the ti77ie to make an applica- 
tion for a patent in Canada and foreign countries. 

When an inventor has been allowed a United 
States patent, his time for making an application 
for a valid patent on the same invention in other 
countries, is limited in many of them by what is 
termed " the law of publication.'* 

In England a patent is either refused, or if 
allowed through careless methods, is absolutely 
invalid, "if a publication of the invention has 
occurred within the reahn previous to the applica- 
tion for an English patent." In France this law is 
analogous, with the exception that the prior pub- 
lication of the invention must not have occurred 
anywhere. 

This has also been the law in Germany until 
recently, when an amendment has been allowed 
which "gives to inventors belonging to nations 
that allow corresponding privileges to German 
subjects, the right to file an application for a 
patent in the Empire within three months from 
the date of official publication of the invention in 
the country of their origin, without fear of having 
the German patent invalidated by reason of such 
publication.'* Inventors of the United States 



FOREIGN PATENTS. 33 

should be enabled to profit by this amendment of 
the German patent law, because of our very liberal 
patent laws respecting aliens, but as yet we are 
denied this privilege, for reasons given in another 
chapter. 

The publication of American inventions, which 
invalidates so many foreign patents, is almost en- 
tirely through the Official Gazette^ published in 
Washington, which contains the claims and draw- 
ings of all United States patents allowed during 
the week. Copies of this publication are mailed 
promptly to Canada and all foreign countries, and 
it is impossible to file an application in the cus- 
tomary way, in either England, France, or Germany, 
soon enough after the allowance of a United States 
patent, to anticipate the official publication of the 
invention. Consequently '^agents'* or solicitors, 
who offer to secure a valid patent in either of these 
countries after such publication are untrustworthy. 
Although there is no such '' law of publication '' in 
the Canadian patent laws, it is unadvisable to du- 
plicate a United States patent there inunediately 
after its allowance here, for reasons that will be 
specifically given in the chapter on Canadian 
Patents. 

A natural solution of this problem in regard to 
"prior publication " would be merely to make an 
application for the patent in England, France, or 
Germany soon after an application has been made 
here, and before the patent has issued. But, as the 



34 PATENTED INVENTIONS. 

law now stands, this course would develop another 
possible contingency, curtailing the life of the 
United States patent, if granted. This section of 
the Revised Statutes reads: 

** Every United States patent granted for an invention 
that has been previously patented in a foreign country shall 
be so limited as to expire at the same time with the foreign 
patent, or, if there be more than one, at the same time with 
the one having the shortest term." ^ 

An application for a patent on the same invention 
may be pending in the United States patent-office 
and in foreign countries at the same time, and there 
will be a strong probability that one or more of 
these foreign patents will issue in advance of the 
United States patent. 

The patent laws of foreign countries, where 
United States patents are most generally dupli- 
cated, include no system of examination into the 
novelty of every invention, and a patent issues as 
a matter of course, after the necessary statutory 
provisions have been complied with, upon every 
application. This will usually be within six months 
from the time the application is made. 

While in the United States a case is not gener- 
all}^ taken up for examination at the patent-office 
until some weeks, and perhaps months, after the 
application is made, even then the proceedings are 
very slow on account of the enforced thorough and 
exhaustive examination into the novelty and util- 

^ Revised Statutes, 4887. 



FOREIGN PATENTS. 35 

ity of the invention. In some cases amendments or 
appeals will be found necessary before a patent is 
allowed to issue, while in others " actions of inter- 
ference'* arise with another applicant for a patent 
on a similar invention, all of which render it im- 
possible for the inventor or his attorney to form 
any definite idea of the time a United States patent 
will issue. If one or more foreign patents should 
be awarded even a day in advance of the home 
patent on the same invention, or even after the 
United States patent has been printed, but before 
its signature, the term of the United States patent 
will expire according to the Statute previously 
quoted. Canada, Belgium, and Spain are the only 
principal countries where the duration of a patent 
is for as long a term of years as ours. Some 
authorities also aver that the term of a United 
States patent will be abridged when the foreign 
patent lapses for the non-payment of taxes, or in 
default of manufacture within the time prescribed 
by their laws. 

An amendment of this section of the United 
States patent-laws, which has been the cause of 
untold trouble and litigation among our inventors, 
has been persistently sought for many years, but 
has not yet been acted upon. It is to the effect, 
that when an American inventor files his applica- 
tion in the United States first, the patent here can 
be held for its full term, without in any way being 
limited by a subsequent application for one or 



36 PATENTED INVENTIONS. 

more foreign patents. ** When this amendment 
is allowed, American inventors will be enabled to 
take advantage of the benefits designed to result 
from the ' International Union for the protection 
of industrial property,' of which * Union ' the 
United States is a member. By the terms of that 
Union, those who have made an application for a 
patent in one of the States constituting the Union 
may, within a definite period, apply for a patent 
upon the same invention in the other countries be- 
longing to the Union, without being prejudiced by 
intermediate acts, such as the publication or use of 
the patented article. The period now fixed for 
that purpose is six months, an additional month 
being allowed to countries beyond the sea, thus 
giving the citizens of the United States seven 
months from the filing date of their domestic appli- 
cations within which to apply abroad, without the 
loss of any rights existing at the date of the Amer- 
ican application." - As it usually takes more than 
seven months for an application made here to 
mature into a patent, it is unadvisable, as the law 
stands now, for the American inventor to attempt 
reaping any advantage from the terms of the 
Union. 

There has been much discussion and disputes at 
law in regard to the actual enforcement of the 
terms of this unjust section of the Revised 

^ Extract from the annual report of the Commissioner of 
Patents. 



FOREIGN PATENTS. 37 

Statutes. But the question has at last been con- 
sidered settled by the unanimous decision of the 
United States Supreme Court recently — in the case 
of the ^' Bates Refrigerating Co.^^ — that the Ameri- 
can patent of this Company was void and curtailed 
three years, because the foreign patent had ex- 
pired, which w^as granted while the United States 
application was pending, and before its issue. 
Some of the most valuable United States patents, 
held by corporations and trusts, were concerned 
in this decision, and the term of seventeen years 
found to be abridged. 

Inventors who desire to obtain valid foreign 
patents in those countries where the "law of pub- 
lication " is enforced, and at a date which cannot 
eventually abridge the life of a home patent, 
should seriously study the right course to pursue. 

Some attorneys advise the application after the 
American patent is allowed but before it is actually 
issued. An issue never takes place until the final 
government fee is paid, and this can be deferred 
six months from the time notice is given of the 
allowance of the patent, during which time the in- 
ventor can send in applications for a patent in one 
or more other countries, and procure the issue of 
his home patent wunediately after this step is taken. 
Another course, which will admit of the prompt 
payment of the Government fee, and the conse- 
quent prompt issues of letters patent, is that of hav- 
ing all the papers necessary for making a foreign 



38 PATENTED INVENTIONS. 

application in readiness, to be mailed by the inven- 
tor's attorney on the safue day notice is received of 
the allowance of the United States patent. These 
papers should merely include a copy of the Amer- 
ican " Specifications and Claims," and of the draw- 
ings which have been made to illustrate the same.^ 
Models are not required by any European country. 

Should the inventor prefer retaining the services 
of a solicitor living in the city where foreign appli- 
cation for a patent is desired, these copies should 
be sent him as soon as possible after the applica- 
tion is y?/^^ here. In order that there may be am- 
ple opportunity afforded him to prepare the appli- 
cation papers in the language of the country, or 
otherwise putting them in readiness to be sent into 
the foreign patent-office promptly, when notice is 
cabled him to do so by the inventor or his attor- 
ney. 

American consuls, and bankers with American 
connections to be found in all the large cities of 
Europe, probably can, and will, assist United 
States inventors with addresses of reputable patent 
attorneys, whose services are so often needed from 
the beginning of the inventor^s labors abroad in 
patenting and working an invention, particularly in 

^ A revised edition of the Norris Peters Co.'s guide in the 
preparation of drawings for applications for patents in for- 
eign countries has just been issued, and is a complete and 
valuable hand-book of instructions, embodying minute rules 
for draug^htsmen, and applicants for patents. 



FOREIGN PATENTS. 39 

those countries where a different language always 
proves an impediment to personal effort. These 
solicitors in their turn generally will find it in 
their power to refer inventors to capitalists, who 
may cooperate with them in working or introducing 
the new machine or article comprised in the inven- 
tion. 

In selecting a foreign attorney the inventor 
should take every precaution, in order that he may 
prove perfectly honorable and trustworthy, and 
most zealously guard everything pertaining to the 
invention which is entrusted to him. That p-irt of 
the United States and Canadian patent-law which 
allows the grant of a patent only to the actual in- 
ventor, if living, or, if not, his assignee, is not en- 
forced in England and some other foreign coun- 
tries, where no oath of the invention is required, 
and a patent is granted to the first applicant^ 
whether he is the true inventor or not. His title 
is held to be legal, and no interference proceedings 
form any part of the patent-office practice. Thus 
any unscrupulous person who may have obtained 
a definite knowledge and understanding of an- 
other's invention, is enabled to make application 
for a patent on the same invention abroad, while 
the application is pending in the United States. 

In all those countries where there is no examina- 
tion into the novelty of the invention, the true in- 
ventor will also be awarded a patent, when his ap- 
plication is made later. As the law is — " when 



40 PATENTED INVENTIONS. 

two or more applications are filed for the same in- 
vention, a patent will be allowed on each one, but 
only that granted upon the first application will be 
valid/' So it follows that a person, other than the 
true inventor, who holds the patent may start and 
continue to manufacture, as long as his title is un- 
disputed and until the legality of the patent is de- 
nied through a course of legal proceedings. 

According to a contributor to The Inventive Age^ 
in an article on ^'Errors in the World's Patent 
Laws," the countries where this kind of piracy — 
as it is professionally called — is legalized are : 

" Great Britain, Cape Colony, Ceylon, South 
Australia, Tasmania, Russia, Spain, Turkey, Den- 
mark, Colombia, Ecuador, Bolivia. In the Colo- 
nies, the law gives patents to the " true and first 
inventor," which words have been perverted to the 
meaning prevalent in England. This perversion is 
usually due to the Crown Officials, and some of 
the courts may yet decide that these words do not 
legalize piracy. 

Piracy 7iot Legalized, 

Canada, United States, France, Switzerland, 
Norway and Sweden, India, Queensland, Italy, 
West Australia, New South Wales, Brazil, Chili, 
Mexico, and some other minor countries. 

In Austria, Belgium, Germany, and Portugal, 

^ Geo. G. Turri, 



FOREIGN PATENTS. 4I 

Others than the inventor may become patentees, 
but their title is unsafe, unless they hold actual 
authority from the inventor." 

Patent-Laws of the U, S, in Regard to Foreigners 

are more liberal, and secure legal protection 
without any restrictions to those who patent their 
inventions here. As the law now stands, they can 
duplicate their patent in the United States at 
any time during the life of their home patent, with 
merely the proviso, that they end at the time the 
earliest foreign patent expires. There is a strong 
effort being made to have an amendment of this 
portion of our patent-laws allowed, by which 
foreign patentees will be obliged to file an applica- 
tion here within two years of the date of the earliest 
foreign patent. As The Inventive Age says : " This 
would grant them the same privileges which our 
own citizens enjoy, and place them on exactly the 
same footing in the patent-office and the courts. 
Many of the patents granted to foreigners have 
proved detrimental to United States inventions, in- 
validating, by ^ priority of claim,' home patents 
which were supposed to be legally protected and 
had led to remunerative results." The amendment 
would render these foreign applications better 
systematized at the patent-office and enable the 
officials to make a more prompt and reliable ex- 
amination of them in connection with our own 
applications. 



42 PATENTED INVENTIONS. 

Compulsory Mamcfacture of Inventions Patented in 
Foreign Countries, 

Special attention is called to the law of " Com- 
pulsory Manufacture," a clause to be found in the 
patent-laws of most foreign countries, and which 
makes the term of years a foreign patent can be 
held, more or less dependent upon the commence- 
ment and continuation of the manufacture of 
articles or machines covered by the patent within 
a specified time. The English patent law, like that 
of the United States, does not enforce the patentee 
*' to work the invention/* 

In Canada — A legal patent is held conditional, as 
to manufacture '^ within two years and con- 
tinuously carried on."^ 

In Germany — Patentees must use all available 
means to put the invention into practical 
shape within three years, and cannot re- 
fuse to give -licenses upon adequate compen- 
sation, when the public interest demands the 
use of the invention. 

In Belgium — The patent must be worked within a 
year of the commencement of manufacture 
in any other foreign country. If the manu- 
facture is continued in other countries, the 
practical working in Belgium cannot cease 
for one year without forfeiting the patent, 
unless such action can be justified. 



^ Limitations of this law to be found in the next chapter. 



FOREIGN PATENTS. 43 

In Austria-Hungary — Patent must be worked 
within one year, and must not afterwards 
cease for two consecutive years. 
In France — Patent must be worked within two 
years, and not afterwards cease for two con- 
secutive years, unless such inaction is justi- 
fied. 
This law, existing in several countries, by which 
the working of a patent is enforced within a speci- 
fied time, was made in order that new industries 
should be developed in those countries without any 
regard to the financial reward of the inventor. In 
some countries, where patents are duplicated, there 
are still further restrictions imposed upon the 
patentee, by which the patented article cannot be 
imported into the country, either in its complete- 
ness or in parts; or any part of the machinery used 
for its manufacture in other countries. 

The Cost of a Foreign Patent. 

There is an erroneous impression, prevailing 
quite generally, in regard to the actual cost of ob- 
taining and holding a foreign patent for the full 
term allowed by law. This is owing chiefly to the 
fact that inventors are apt to take into considera- 
tion merely the cost of obtaining letters patent in 
the country or countries where a patent is desired, 
without reference to the constantly recurring tax, 
which is demanded at the end of certain years, 
and which makes the total cost of a foreign patent 



44 PATENTED INVENTIONS. 

for the full term very large. If this tax is left unpaid 
at any time when due, the patent must be forfeited. 

Some authorities contend this forfeiture will also 
end the life of a home patent upon the same in- 
vention, issued at a later date ; but it is yet a dis- 
puted point in the courts, although the Supreme 
Court decided recently in a case, ** That a foreign 
patent, having lapsed by reason of non-payment of 
fees, an American patent granted after foreign 
patent had first issued, was also void." ' 

" Patents are now granted to inventors in sixty- 
four countries. Sixteen of them are in Europe, 
eight in Africa, four in Asia, nine in Oceanica, and 
twenty-seven in America. There is said to be but 
one patent on record which has been duplicated in 
all of these countries, vvhich, according to The 
Paper Record^ was procured by two Frenchmen at 
a cost of ^3,600." 

Some of the circulars received by patentees will 
advise the immediate protection of their invention 
— aside from Canada — in Great Britain, Germany, 
France, Belgium, Spain, and Cuba, with often spe- 
cial rates for the ^^ series." The information also 
being given that ** many of these countries offer 
inviting fields for the introduction of American in- 
ventions." But in cases where the inventor has 
really received a valid foreign patent, he will often 
find in endeavoring to work his invention in some 
foreign countries, that there are no facilities 

^ Case of Huber vs. Nelson. 



FOREIGN PATENTS. 45 

for developing new branches of manufacture , 
while in others, existing limitations and exactions 
of their patent-laws renders the holding of even 
one foreign patent by an American patentee both 
troublesome and costlv. 

Our inventors are already beginning to awaken 
to the fact that, with the exception of some foreign 
patents held by professional inventors and thorough 
business men, who have sufficient ability and capi- 
tal to personally advance their own interests in 
foreign countries, it is rarely advisable to procure 
foreign patents upon an invention that is to be, or 
has been, patented in the United States. It is 
better to seek emolument from the invention 
through importation. This will be at the inventor's 
option when he either personally manufactures 
under the patent, or retains a controlling interest 
in an incorporated company for the manufacture. 
Travellers in foreign countries are cognizant of 
the fact that importation of patented articles and 
machines are already very extensive, even in re- 
mote countries. A correspondent of The Inventive 
Age writes: 

" I saw advertisements for the sale of American watches, 
filling columns in newspapers, and large spaces on the walls 
of buildings in most of the cities of India. I heard the hum 
of the American sewing-machine in the byways and broad 
streets of Bombay, Calcutta, and Rangoon. I saw Ameri- 
can lamps for burning American petroleum hawked about 
the streets on wheelbarrows for sale in Yokohama, Tokio, 
and Shanghai. I heard the clatter of the American type- 



46 PATENTED INVENTIONS. 

writer in Tientsin and Swatow. I saw American tram-cars 
running in the streets of Tokio, and the American windmill 
pumping water on the bluffs of Yokohama. I was glad 
when I heard the click of Connecticut clocks keeping time 
for Orientals who are alwaj^s behind. California canned 
fruits, and Oregon salmon, and Boston baked beans, in 
hotels all over the East, made me feel that home was not so 
very far away." Yet, comparatively speaking, the Oriental 
market has been neglected by American merchants and 
manufacturers. 

A fact previously stated "should be well con- 
sidered in this connection, that when foreign pat- 
ents are held by American inventors, the patent 
laws of most of those countries compel a forfeiture 
of the patent, if the whole or part of the invention 
as contained in vhe description " is imported into 
the country. 

This chapter has merely touched upon foreign 
patent-laws in general. But in each country there 
are especialldi-ws governing the allowance and work- 
ing of patents, which inventors should thoroughly 
understand, before making an application for one 
or more foreign patents. The following chapters 
will contain detailed information upon this subject, 
in the countries where American patents are most 
frequently duplicated — Canada, and the three lead- 
ing countries of Europe. 

Trade Marks. 

In order to protect machines, merchandise, and 
other articles, which are not patented in foreign 



FOREIGN PATENTS. 47 

countries, but imported into Europe, it will be ex- 
pedient to have their United States Trade Mark 
registered in each foreign country, where they are 
to be placed on sale or for use. This will insure 
recognition of the original factory, and the better 
style and workmanship of many kinds of American 
machines or manufactured goods, which are so 
often copied, and perhaps patented, by foreigners, 
and quickly applied to their own profit. If the 
Trade Mark is not registered by the importer, thai 
can be copied and used as well. It can be secured 
now in most of the foreign countries, through any 
United States attorney, and their laws protect the 
registration by inflicting penalties upon any un- 
lawful use of the mark. 

Prices for securing Trade Marks, which include 
both the government and agency fees, are gener- 
ally as follows : — 

Canada, $40. France, $ 85. 

Great Britain, $85. Austria, $100. 

Belgium, $65. Germany, $100. 

Switzerland, 
Special charges for the series.* 



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CHAPTER V. 



CANADIAN PATENTS. 



After the issue of a United States patent, the 
average inventor feels a strong desire to hold the 
monopoly of his invention in at least one other 
country. Duplicating the patent in Canada is 
found to be more convenient and much less expen- 
sive than obtaining and holding a patent in any 
European country, and the result is, many Cana- 
dian patents are issued annually to inventors of the 
United States, exceeding in number those issued 
to citizens of Canada. 

Although the Canadian patent-laws are claimed 
to be very liberal to aliens, there are certain limit- 
ations which are so strenuously enforced as to 
make it exceedingly difficult for the patentee to 
work the invention in Canada, and hold the patent 
for the whole term. 

The inventor is advised to thoroughly under- 
stand these laws, with all the requirements that 
will ensue, before making an application for a 
Canadian patent. 

49 



50 PATENTED INVENTIONS. 

The Canadian Pate7it-0ffice 

is in Ottawa, and a branch of the " Department of 
Agriculture." The Minister of Agriculture acts 
also as Commissioner of Patents, receives the appli- 
cations, and fulfills all the requisite duties for the 
granting and issuing of patents. 

When a patent is to be duplicated in Canada, 
there will be required a copy of the United States 
specifications and drawings, and, according to new 
rules, an additional copy of the ^* Claims."^ Pat- 
ents will then be issued, with no preliminary 
examination at the Canadian office. Attorneys 
living in Ottawa will institute a " Search " in the 
patent-office when their clients request it, in order 
to be assured of the priority of their invention in 
Canada, before making the application. A small 
model or sketch will be required, or, if there is a 
United States patent, a copy of the specifications 
and drawings, or in lieu of ^* the copy," the title, 
date, and number of the United States patent. 

There are several advantages to be gained in re- 
taining the services of a reputable attorney in Ot- 



^ Circular issued by Deputy Commissioner of Patents, 
January, 1893. " In view of the desirability of expediting 
the business of the Office and the publication of the Patent 
Office Record, it is requested that in future inventors or their 
agents forward to this Office, with the usual application for 
a patent, a third copy or triplicate of the clahn or claims^ 
in type-writing or in clear legible handwriting." 



CANADIAN PATENTS. Jl 

tawa. (i.) The total cost of letters patent are 
somewhat less. (2.) Extensions are easily, quickly 
and legally granted. (3.) Addresses of Canadian 
capitalists and leading manufacturing firms in the 
line to which these patented articles appertain, will 
generally be supplied to clients. 

"An assignment of an invention, or patent, for the 
United States, will not in any way affect the right 
of an inventor to a Canadian patent. When an 
assignment of the patent is made in Canada, either 
before or after the issue of the Canadian patent, 
the assignment must be registered at the Canadian 
patent-office. When the patent-rights have been 
assigned in Canada before the application, the as- 
signment must be prepared and registered before, 
or at the same time, the application is made.'' 

Models. 

Until the last amendment of the Canadian pat- 
ent-laws went into operation — July, 1892 — models 
were demanded at the Canadian patent-office be- 
fore the patent deed was sent to the patentee. 
Now, models are entirely dispensed with, unless 
called for by the Commissioner. A portion of 
Rule 14, reading — " The applicant, if required by 
the Commissioner, shall furnish a model of con- 
venient size, exhibiting its several parts in due pro- 
portion ; and when the invention is a composition 
of matter, the applicant, if required by the Com- 
missioner, shall furnish specimens of the ingredi- 



52 PATENTED INVENTIONS. 

ents and of the composition, sufficient in quantity 
for the purpose of experiment. If such ingredients 
or composition be of an explosive or dangerous 
character, they shall be furnished with such pre- 
cautions as are prescribed in the requisition there- 
for." 

Time to Apply for a Canadian Patent. 

A patentee of the United States, or any for- 
eign country, is allowed one year from the date 
of issue of the home patent, to file an application 
in Canada. Section 8, of the Canadian Patent 
Act, with the amendment of 1892, is as follows: — 

" Any inventor who elects to obtain a patent for his in- 
vention in a foreign country before obtaining a patent for 
the same invention in Canada, may obtain a patent in Can- 
ada, if the same be applied for within one year from the 
date of the issue of \\i^ first foreign patent for such inven- 
tion ; and if, within three months after the date of the issue 
of a foreign patent, the inventor gives notice to the Commis- 
sioner of his ifitention to apply for a patent in Canada for such 
invention, then no other person having commenced to man- 
ufacture the same device in Canada during such period of 
one year, shall be entitled to continue the manufacture of 
the same after the inventor has obtained a patent therefor 
in Canada, without the consent or allowance of the inven- 
tor ; and, under any circumstances, if a foreign patent 
exists, the Canadian patent shall expire at the earliest date 
on which any foreign patent for the same invention expires." 

As the term of a Canadian patent is now for 
eighteen years, one year longer than our own, 



CANADIAN PATENTS. 53 

it may prove expedient for the inventor in some 
cases to send in his Canadian application before 
the home patent issues, which will enable him to 
hold the Canadian patent for the whole term of 
eighteen years if afterwards found to be desirable; 
and will also prevent any probable appropriation 
of the invention by other parties for even the few 
months that may otherwise elapse between the 
publication of the invention, and either the grant 
of a Canadian patent, or the notice of proposed 
application sent to the Commissioner. 

On the other hand, when an invention is so com- 
plicated as to require a great amount of labor and 
capital to make it a working success, there will be 
little danger of its appropriation by others within 
the year, and by deferring the application in Can- 
ada until the end of the twelve months allowed by 
law, advantages will accrue in three ways.^ 

First. — The experience gained during the year in 
endeavoring to sell or develop the home patent will 
tend to a wiser decision in regard to the expedi- 
ency of obtaining and holding a Canadian patent, 
and entering into an additional outlay of time and 
money. 

Second. — An additional year is gained in which 
to comply with the Canadian patent law, which 
makes the holding of a patent conditional upon 

^ Attorneys will often require six weeks or two months 
before the expiration of the year to get the papers in readi- 
ness for the application. 



54 PATENTED INVENTIONS. 

the commencement and continuous manufacture 

of the patented article in Canada, within two years 

after its issue in that country. 

Third. — The gain of one year in which to import 

the whole or part of the invention comprised in 

the specifications ; as a Canadian patent becomes 

void, if the machine or article patented is imported 

into Canada after twelve months from the date of 

issue. 

Caveat. 

An inventor may lodge a caveat in the Canadian 
patent-office, but this action will not prolong the 
time within which an application for a patent must 
be made, /. ^., twelve months from the date of the 
United States patent. It will only prove of ad- 
vantage when the inventor desires to enlarge the 
claims of a home patent, which have been limited 
by prior patents, and at the same time obtain such 
protection as would insure him against the appro- 
priation of the invention by others. 

Inventors who make an application for a Cana- 
dian patent without previously posting them- 
selves upon the requirements that will be exacted 
sooner or later, are not aware of two existing pro- 
visions of the Canadian patent-law, which will 
eventually entail upon the inventor much extra 
labor and expense, to even hold the patent for 
the term of eighteen years. One of the Patent 
Commissioners in Canada has said: *^ The object 
of the Canadian patent-law is, that Canadian in- 



CANADIAN PATENTS. 55 

dustry and Canadian labor should in the shortest 
possible time be made to profit by new inven- 
tions. And the thirty-seventh section of that law 
is intended as a sort of protective policy in favor 
of Canadian labor, and a guard against the dan- 
ger of Canadian patents granted to aliens being 
made instrumental in securing the Canadian mar- 
ket in favor of foreign patents, to the detriment of 
Canadian industry." 

The section just referred to makes the holding 
of a Canadian patent conditional as to 

Manufacture in Canada^ 
and it reads : 

•'Every patent granted under this Act shall be subject, 
and be expressed to be subject, to the condition that such 
patent, and all the rights and privileges thereby granted, 
shall cease and determine, and that the patent shall be null 
and void at the end of two years from the date thereof, 
unless the patentee, or his legal representativ^es, within that 
period commence, and, after such commencement, continu- 
ously carry on in Canada the construction or manufacture 
of the invention patented, in such manner that any person 
desiring to use it, may obtain it, or cause it to be made for 
him, at a reasonable price, at some manufactory or estab- 
lishment for making or constructing it in Canada." 

It is held that this section does not require the 
patentee or his representative to manufacture the 
invention personally, but in such manner that any 
person desiring to use it may obtain it in Canada 
at a reasonable price. But even thus construing 



56 PATENTED INVENTIONS. 

the meaning, there will follow the necessity of 
either selling the patent, or getting it accepted by- 
some manufacturer, who will get it upon the mar- 
ket and pay royalty to the inventor. The fact has 
been well proven, that few patentees living out of 
Canada, who hold a Canadian patent as well as a 
home patent, are able to commence, or have com- 
menced for them, the manufacture of the inven- 
tion in Canada within the prescribed two years; 
consequently, there has been added a sub-section 
to Article 37, viz.: 

** Whenever a patentee has been unable to carry 
on the construction or manufacture of the inven- 
tion within the two years hereinbefore mentioned, 
the Commissioner may at any time, not more than 
three months before the expiration of that term, 
grant to the patentee an extension of the term of 
two years, on his proving to the satisfaction of the 
Commissioner that he w3.s,/or reasons beyond his con- 
trol^ prevented from complying with the above con- 
ditions." 

An extension is usually allowed for one year. If 
at the expiration of the year the patent is still 
unworked in Canada, it can be yet longer extended; 
even from year to year, until the close of the first 
period of six years, for which time most Canadian 
patents are at first issued.^ 

When a Canadian patent has been held for nearly 

^ Attorney's fee for obtaining an extension is usually 
$5.00. 



CANADIAN PATENTS. 57 

two years, and manufacture under the patent has 
not been commenced in Canada, the inventor be- 
gins to receive communications which call atten- 
tion to the fact " that the patent will then become 
null and void, unless he avails himself of the 
allowed extension." 

Although " extensions '' can be obtained through 
any of these patent attorneys or agencies, they 
often prove to be utterly worthless for the reason 
that one important clause in the law for ** exten- 
sion of time,'* has been entirely ignored. When 
the terms in regard to manufacture and extension 
are legally questioned, in order to retain the 
validity of the patent, the inventor must/;^^z^^ that 
he has complied with that part of the sub-section 
quoted, which grants an extension only, " when the 
manufacture has been delayed beyond the two 
years for reasons beyond his control*^ 

The Commissioner says : " The mere allegation 
of inability to manufacture in Canada is no plea 
in defense of a Canadian patent. The object and 
intention of this Patent Act is for the purpose of 
encouraging and protecting home labor and manu- 
facture," and both Section 37 and the sub-section 
are most strictly enforced. One instance will per- 
haps suffice. In May, 1888, a petition was made to 
the Minister of Agriculture to have a patent of 
Edison's — the Edison Electric Lamp — declared null 
and void, on the ground of violation of both parts 
of Section 37 of the Canadian patent-law. In i88i, 



58 PATENTED INVENTIONS. 

an extension of three months time, in which to 
commence the manufacture was granted him. In 
his application for the extension he alleged that 
he had failed in manufacturing the invention in 
Canada within the prescribed time for the reason 
that he had been engaged in introducing it into 
other countries, and its establishment in Canada 
required a large amount of additional capital. The 
petitioner held that the given reasons were a '^ false 
and willful misrepresentation, as the Edison Elec- 
tric Co. were abundantly able to advance any 
amount necessary to establish and manufacture in 
Canada, and could be so proved by the large capi- 
tal stock then owned by the company. It was also 
contended that when the manufacture was com- 
menced in Canada, and a small factory started in 
Montreal, the entire outfit was of so little value as 
to show no intention of fully complying with the 
law. The sale of lamps was also refused, unless in 
connection with their own plant, thus creating a 
monopoly which the Canadian law did not coun- 
tenance. Notwithstanding the patentee and 
his assignees held that they had in every respect 
complied with the terms of the Patent Act, the 
Commissioner of Patents decided the Canadian 
patent of the " Edison Electric Lamp,*' null and 
void under the provisions of the 37th section of the 
Patent Act.^ 



^ "Manual of Canadian Patent Cases." 



CANADIAN PATENTS. 59 

Forfeiture of a Canadian Patent. 

Section 37 of the Canadian patent-law has an- 
other sub-section, which is well to consider in con- 
nection with the importation of patented articles 
or machinery, viz. — " That such patent shall be void 
if, after the expiration of twelve months from the 
granting thereof, the patentee, or his legal repre- 
sentative, or his assignees for the whole or part of 
his interest in the patent, imports or causes to be 
imported into Canada the invention for which the 
patent is granted. And if any dispute arises as to 
whether a patent has or has not become null and 
void under the provision of this section, such dis- 
putes shall be decided by the Minister of Agri- 
culture (acting also as Commissioner of Patents) 
or his deputy, whose decision in the matter shall 
be final." 

This law is not only enforced in regard to the 
patented invention in its completeness, but also to 
any part or parts of the invention to be used in the 
assembling together of the whole, or even any of 
the materials necessary in the process of manufac- 
ture. "Voidanceon account of importation also 
applies to the process^ inasmuch as machines are 
the means to carry the process into operation.'* 
In fact, in the question of importation as well as 
manufacturing, the process cannot be separated 
from the machine. Consequently, when an attempt 
is made to start the manufacture of a patented 
article in Canada, which is in any sense of a com- 



6o - PATENTED INVENTIONS. 

plex nature, the patentee or his assignee will often 
find it of great advantage to apply for an '^ exten- 
sion of ti??ie,'' in which to import the whole or parts 
of the manufactured invention into Canada, as 
facilitating the beginning of a new manufacture in 
this other country. The allowance of an ^' exten- 
sion of time for importation " is found in sub-sec- 
tion 3 of Section 37, viz. — 

" 3. The Commissioner may grant to the patentee or his 
assignee or assignees, for the whole or any part of the 
patent, an extension for a further period of time, not ex- 
ceeding one year beyond the twelve months limited by the 
first paragraph of this section, during which he may import 
or cause to be imported into Canada the invention for which 
the patent is granted ; Provided, that the patentee or his 
assignee or assignees for the whole or any part of the pat- 
ent, shall show cause satisfactory to the Commissioner to 
warrant the granting of such extension ; but no extension 
shall be granted, unless application be made to the Com- 
missioner at some time within three months before the 
expiration of the twelve months aforesaid or any extension 
thereof." — {Ame?idinent of 1882.) 

This law is also most rigorously enforced " for 
the protection of Canadian labor and industries." 

In this same case of the ^^ Edison Electric Lamp," 
the Canadian patent was also declared void for the 
reason held, ^' that every esse7itial feature, element 
and component part of the invention was, and con- 
tinued to be, imported into Canada in a manufac- 
tured state, for the purpose of putting them together 
so as to make an incandescent electric lamp, such 



CANADIAN PATENTS. 6l 

as that described and claimed in the patent." 
That " although in January, 1883, the small factory 
in Montreal was closed, the business transferred to 
Hamilton, and there increased and more men em- 
ployed^ there was no change in the manner of get- 
ting out the lamps; the same articles were im- 
ported, but in larger quantities, and the assembling 
of all the parts and putting them together was 
done at Hamilton, as in Montreal. This making 
the proportionate cost of labor bestowed in the 
United States on the articles sent into Canada a 
loss to the Canadian laborers'' 

" The respondents admitted the importation of 
the various parts of the invention, but the evidence 
they adduced went to show that these were all raw 
material; that they were all ordinary articles of com- 
7?ierce^ and could be used for any other purpose be- 
sides incandescent lamps ; that the carbon fila- 
ments, as imported, were only partly manufactured 
in the United States, and the carbonization was 
completed in the Canadian factory; that the glass 
bulbs and tubes, after they were imported, passed 
through several processes in the factory in Canada, 
to render them fit for use in the lamp; that the 
platinum was obtained in the United States, and 
before being sent into Canada for use in the lamps, 
was re-melted from the crude material, and then 
drawn out into wire and slightly alloyed with iri- 
dium, to make it harder. This wire was attached to 
the carbon, and fitted into the glass bulbs in Can* 



62 PATENTED INVENTIONS. 

ada; that if the company had been compelled to 
manufacture the carbons in Canada, it would have 
ruined the business in Canada; that the platinum 
wire would have cost two hundredfold more in 
Canada, as it requires a special furnace to prepare 
it. That the cost of material in the United States, 
as imported into Canada, would be in the proportion 
of one-third, and the labor in Canada two-thirds. 
The patentee and his assignees contended they had 
in every respect complied with the terms of the 
Patent Act. But the patent was held to be void on 
the violation of the section previously referred to." 
^^As the patentee and his representatives had im- 
ported, and continued to import, into Canada the 
various elements and parts comprising the inven- 
tion, as claimed in the Canadian patent, in a manu- 
factured state.'* ^ 

Another case^ might be briefly referred to, where 
the Canadian patent was granted, and after many 
years spent in perfecting the manufacture and con- 
sequent sale of the patented article, it finally 
became a success in Canada. But the patent was 
disputed and pronounced void, eight years after the 
grant, on account of the illegal importation into 
Canada. The respondents claimed that the ship- 
ments, made after the time allowed for importa- 
tion, were of certain parts that would help the 



^ "Manual of Canadian Patent Cases." 

2 The Hancock Inspirater Co., suit brought in 1885. 



CANADIAN PATENTS. 6$ 

manufacturers of the article in Canada, inasmuch 
as neither their licensees, nor any other persons, 
were willing to undertake the manufacture of such 
parts. The Deputy Commissioner decided — ** That 
if the elements made use of in the mechanism, are 
imported as constituents of the combination as se- 
cured by the said patent, and to be used as such, 
this importation is the importation of the patented 
article, and the patent is therefore void.*' There 
are also other decisions of the court in regard to 
the enforcement of the Canadian patent law, which 
affect very materially the interests of United States 
patentees, when the attempt is made to work their 
invention in Canada. 

In the summing up of the Bell Telephone Case 
in Ottawa,^ the counsel said — There are in the 
nature of things three sorts of contracts in relation 
to patents. (t.) The license to use, the purchaser 
himself furnishing the means to use. (2.) The sale 
of the means to use the invention. (3.) The as- 
signment of the whole, or portion of the patentee's 
privileges. In all of these cases, he adds, " it must 
be borne in mind that our Patent Act differs essen- 
tially from the English and American laws. Our 
patentees are bound to license^ that is, to sell the use 
of their invention, and bound to see that their in- 
vention is not imported after twelve months, or 



^ The Toronto TeleDhone Manufacturing Co. vs. The 
Bell Telephone Company of Canada, in 1885. 



64 PATENTED INVENTIONS. 

within the time of extension, because connivance 
in an importation is equal to importing or causing 
to be imported. Neither are patentees allowed the 
refusal to license or to sell, for the purpose of leas- 
ing at a rental." The English and American pat- 
entees, on the contrary, can select their own condi- 
tions in a contract, in the nature of which they are 
bound, of course, when entered upon; but into 
which they are not forced by law, as are the Cana- 
dian patentees. 

A Canadian patent comprises the provinces of 
Ontario, Quebec, New Brunswick, Nova Scotia, 
Prince Edward Island, Manitoba, and British Co- 
lumbia, the aggregate population is 6,000,000. It 
is stated that *' in each of these provinces there are 
many large manufacturing places, where thou- 
sands of American inventions are manufactured," 
and a recently issued census bulletin at Ottawa, 
gives the number of industrial establishments in 
Canada at 75,768, an increase of fifty per cent, in ten 
years. Personal effort and supervision will always 
be found necessary in order to make a Canadian pat- 
ent remunerative to the inventor. The rules of 
procedure given in the several chapters of '' Part 
Second " should be followed, with due allowance 
made for the difference in the patent-laws of the 
two countries. 



CANADIAN PATENTS. 65 

Duration of a Canadian Patent^ with Cost and Fees. 

Since 1892, Canadian patents are granted for a 
term of eighteen years, " but at the time of the ap- 
plication, it shall be at the option of the applicant 
to pay the full fee required for the term of eighteen 
years, or the partial fee required for the term of 
six years, or the partial fee required for the term 
of twelve years.'* A circular issued from the Cana- 
dian patent-office, December, 1894, states that '^ap- 
plications for patents sent to that office unaccom- 
panied by the fee provided by law, will, in future, 
receive no official recognition, nor be filed nor 
numbered.*' 

Tariff of Fees. 

Full fee for 18 years $60.00 

Partial fee for 12 years 40.00 

Partial fee for 6 years 20.00 

Fee for further term of 12 years 40.00 

Fee for further term of 6 years 20.00 

On lodging a ^^z/^^/. - 5.00 

On asking to register a judgment protanto 4.00 
On asking to register an assignment or 
any other document affecting or relating 

to a patent 2.00 

On asking to attach a disclaimer to a pat- 
ent 2.00 

To these fees must be added attorney's charges. 
The usual charges of United States attorneys, 
which will include the government fee and agency 
charges for the first term of six years, are forty 



66 PATENTED INVENTIONS. 

dollars. The schedule of fees given by Canadian 
attorneys are somewhat less/ as there are no 
*' agency charges." When the term of the patent 
is extended to twelve years, after the expiration of 
the first term, there will be another " attorney 
charge," and still another, when the patent is yet 
further extended to the full term of eighteen years. 
And although the cost of the patent for the full 
term will aggregate less, if the first application is 
made for eighteen years, it is unadvisable to apply 
for a longer time than the first period of six years. 
As, in consideration of the Canadian patent-laws, 
the ability of the inventor to legally hold a Cana- 
dian patent longer than the first term of years is 
extremely uncertain. 

Applications for extension of time for manufac- 
turing or importing within this first term, will en- 
tail additional ^* attorney's fees." 



^ J. Coursolle & Co., Ottawa, quote : 

Government fee for 6 years $20.00 

Attorney's fee 10.00 

Total S30.00 



CHAPTER VI. 



ENGLISH PATENTS. 



Before patent-laws were made and enforced in 
England, the word patent had an entirely different 
signification, and was applied to monopolies held 
by individuals or corporations as a mark of royal 
favor. 

Hallam records *^that all through the sixteenth and 
the beginning of the seventeenth century, patents 
to deal exclusively in particular articles were 
granted so lavishly to the courtiers, that hardly a 
commodity remained free, even salt, leather, and 
coal were the subject of patents ; the list of which, 
when read over in Parliament in 1601, was so long 
that a member asked incredulously ^ Is not bread 
among the number ? ' The grant of these monopo- 
lies to favorite courtiers was really for the purpose 
of raising revenue for the crown, by imposing an 
annual tax upon each grant — the heaviest it »vould 
stand." When, in later years, the English patent- 
laws were drawn up for the grant of patents on 
inventions, the high annual tax was still retained, 
and it is the recurrence of this tax now, in every 
foreign country, as well as in England, which 
renders it so difficult for the inventor to hold his 



6S PATENTED INVENTIONS. 

foreign patent to the full extent of the term allowed 
by law. 

An English patent affords protection in Great 
Britain, Ireland, and the Isle of Man, for such in- 
vention as the applicant has made or derived from 
another. No oath of individual invention is re- 
quired, and a patent is granted to the first ap- 
plicant, whether he is the true inventor or not. 

A correspondent of The Inventive Age^ says: ^* In 
the first patent-law case tried, after the famous 
' Statute of Monopolies ' had been repealed (Edge- 
berry vs, Stephens, 1691), the court held that ^ an 
invention a man claimed by virtue of brain-power 
was the same as the knowledge he may have received 
of a new thing to the country, through his travels 
or investigations. Eithei made him equally the 
true and first inventor.' " 

This clause of the patent law is not only still 
upheld in the same way, but is sustained by some 
of the best English authorities, who claim that 
*^ local industries are stimulated by the introduc- 
tion of valuable inventions into the country, and 
it is immaterial for the. country's advancement, 
whether the introducer or importer gain the mo- 
nopoly through letters-patent, or the man who is the 
true inventor." Thus it happens that as a copy of 
every United States patent is soon accessible to 
all citizens of Great Britain, many valid English 
patents are granted annually to those who are not 

^ George G. Turri. 



ENGLISH PATENTS. 69 

the true inventors. While the country itself gains 
legal monopoly of the greater number of these in- 
ventions, for the reason that either no patent /s 
applied for, or the applications are sent too late to 
obtain a valid patent.' The fact is becoming quite 
generally known ** that letters patent sent out from 
the English patent-office with the official seal of the 
Crown affixed, although very imposing in appear- 
ance, really offers, in itself, no guarantee of the valid- 
ity of the patent." The system of preliminary exam- 
ination into the novelty of the invention, which is 
enforced most carefully in the United States patent- 
office, is not included in the routine work of the 
English office. So that a patent issues not only to 
the first applicant, whether he is the true inventor or 
not, but when two or more applications are filed for 
the same invention, if the formal parts are in accord- 
ance with established rules, a patent will be allowed 
on each. If disputes arise later in regard to 
priority of claim, and legal action resorted to, 
only the patent granted upon the first application 
will be pronounced a legal one. 

In consideration of these English patent-laws 
the inventor will readily understand the import- 
ance of securing the best professional services, in 
order to obtain a valuable English patent, and 
issued at a time which will not limit the duration of 
a United States patent. When the services of a 
London attorney are retained, there will be re- 

1 See chap. IV., p. 32, " The Law of Publication." 



70 PATENTED INVENTIONS. 

quired a copy of the United States specifications 
and drawings; or, if no application has been made 
in the United States, a detailed description of the 
invention, stating the parts that are claimed as 
new, aside from the old combinations, also a work- 
ing model or rough sketch, embodying the full 
conception with the practical results to be ob- 
tained. 

The priority of an English patent dates from 
the deposit of the application^ not allowance and 
subsequent publication of it, which fact renders 
it impossible for any absolute assurance of the 
priority of an application. But in the English 
patent-office are filed printed copies of all the 
published specifications and drawings, as well as 
an abridgement of the same ; and the inventor 
is advised to have his attorney institute (or have 
instituted for him, w^hen not a resident of London), 
a preliminary search in connection with these 
published specifications, as a limited safeguard at 
least. 

When the application papers are made out in 
England, and an application is pending in the 
United States, they should be in readiness to send 
to the Comptroller General of the patent-office as 
soon as notification is received of the allowance of 
the United States patent.^ 



-* See **Time to Make Applications," for a foreign patent, 
Chapter IV., p. 37. 



ENGLISH PATENTS. 7 1 

Provisional Specifications. 

In the revision of the English patent-laws in 1886, 
there was incorporated a provision which was in- 
tended to answer the same purpose as the United 
States caveat ; allowing provisional protection 
on an invention for twelve months; but when the 
inventor decides to complete the patent for the 
first period of four years, final or complete specifi- 
cations must be lodged within nine months (or by- 
special permission ten months) of the date of the 
first application. The charges for securing provis- 
ional protection, including government fee, are 
from eighteen to twenty dollars. Circulars received 
by United States patentees from unknown agen- 
cies, offering to procure this protection in Eng- 
land, and perhaps other foreign countries, at a 
much less cost, are not generally to be depended 
upon, and documents received from these sources 
often prove absolutely worthless, as invalidated by 
the ^^ law of publication." 

The advantages to be gained through " provi- 
sional protection " are supposed to be twofold. 

First. — Gaining more time to complete an inven- 
tion, and by making the date of the application 
thus earlier, invalidating applications of other in- 
ventors for the same invention, which, although 
made later, might issue first. The priority of an 
English patent dating from the application^ as pre- 
viously stated. 

Secondly, — The allowance of a few months before 



72 PATENTED INVENTIONS. 

making the final application, in which to test the 
practical working results of the completed and 
patented invention in the United States, or some 
other country. This course may suggest some 
improvements or changes in the invention, which 
it would be of advantage to incorporate into the 
final English specifications, or it may prove to the 
inventor the inexpediency of taking any further 
steps towards securing an English patent. 

Existing rules of the English patent-office for the 
preparation of " provisional specifications," are to 
the effect, that they shall be so worded as to leave 
a wide margin for the applicability of the inven- 
tion, and for any improvements which may be 
determined upon before filing the complete specifi- 
cations; yet they must be sufficiently limited to 
show clearly what the invention is, with the prac- 
tical working results to be obtained, and not cover 
two or more separate inventions. The final specifi- 
cations can be a copy of the United States specifi- 
cations for the same invention, if no changes are 
made; if they are made, or if no application has 
been made in the United States, final specification 
papers must be newly prepared. The government 
fee paid for "" provisional protection " is applied 
towards the full payment of the complete patent 
for four years. 

Although United States inventors are often ad- 
vised to obtain " provisional protection," as their 
first step towards getting an English patent, there 



ENGLISH PATENTS. 73 

is an opinion steadily gaining ground, that there are 
not only no particular advantages to be really 
gained by procuring " provisional protection " for 
nine months, but that these specifications are often 
so used and limited, as actually to work to the dis- 
advantage of the inventor. An illustration of this 
point from Mr. Tourri's letter to The Inventive Age 
IS in substance as follows : " Two inventors, stran- 
gers to each other, devise similar inventions. The 
invention which possesses certain working quali- 
ties necessary for its ultimate success, is filed in 
the English office a few days later than the one 
which essentially lacks those qualities. The in- 
ventor of the better machine or appliance, anxious 
to secure his patent, files his final specifications 
before the end of the term of the granted ^ pro- 
tection.' His patent soon issues and is open to 
public inspection. The other inventor then sees 
his mistakes in comparison with this similar but 
more valuable invention, incorporates the better 
ideas into his own final specifications, which he 
then files. With no system of examination into 
novelty, both patents issue, and are dated from the 
time of filing the first specifications. Thus allow- 
ing the valid patent to the inventor who has appro- 
priated the idea of the other, and making it possible 
for him legally to compel the true inventor to cease 
manufacturing under his patent, or pay him royalty." 
The Inventive Age says: *^ Notwithstanding British 
patent-office examiners are supposed to insist on 



74 PATENTED INVENTIONS. 

conformity between provisional and complete 
specifications, great latitudes in introducing modi- 
fications are allowed." 

Mr. Tourri quotes several English authorities as 
being strongly opposed to the system *' of pro- 
visional protection," declaring ^^ that it seriously 
retards progress and opens the door to fraud." 

Whatever the reason may be, the last annual re- 
port of the Comptroller-General of the British 
patent-office shows that the practice of filing appli- 
cations with complete and final specifications at 
the outset, is decidedly on the increase. While 
every year shows an increased number of pro- 
visional specifications abandoned, for the reason 
that the final specifications have not been filed 
within the legal period of nine months from the 
filing of the first ones. 

The Time Letters Patent are Granted after Final 
Specifications are Lodged, 

" When final specifications are sent to the Eng- 
lish patent-office, the Comptroller generally for- 
wards official acceptance of the same in three or 
four weeks. The invention is then made public 
and remains open to opposition for two months. 
If there are no objections made, the Royal Letters 
Patent are then granted. The Government " Blue 
Book " publishes the specifications a month after 
the application is allowed, and a month after this 



ENGLISH PATENTS. 75 

publication the patent issues."^ No copy of the 
specifications is attached to the patent deed in 
England, as it is in the United States, Canada, and 
Europe generally. 

The letters patent so received give protection 
for only four years. If it is decided to extend the 
patent, renewed annual payments must be made 
until the expiration of the whole term of fourteen 
years, which dates from the time of the first appli- 
cation; and the first *^ after-payment ** will be 
required before the expiration of the first period of 
four years. The other payments are generally 
made each year throughout the remainder of the 
term, and if allowed to lapse for any reason, the 
patent becomes void. 

Cost of an English Patent^ including Taxes, 

When a patent is obtained in England, through 
an attorney living out of the country, the expense 
will necessarily be somewhat greater than when 
the services of a London solicitor are retained, for 
the reason that there must be added ^^ expenses 
of transportation^ agency charges, and exchange of 
money.'* But in most cases, when the patent is 
to be duplicated abroad, the inventor is advised to 
employ the trustworthy attorney who has made his 
application in the United States. 



^ Horn's *' Guide to Patent Law and Registration." 



76 PATENTED INVENTIONS. 

Fees and other charges, in connection with 
taxes, are quoted by two United States attorneys as 

follows: — 

For Letters Patent covering four 
years, $100.00 $100,00 

Fourth, fifth sixth, and sev- 
enth years (before the expira- 
tion of each) Each 60.00 x 4=240.00 

Eighth and ninth (before the 

expiration of each), Each 85.00x2=170.00 

Tenth, eleventh, twelfth and 
thirteenth (before the expi- 
ration of each), Each 110.00x4=440.00 

Total for fourteen years $950.00 

The London firm of Horn & Co., makes the following 
estimate : — 

Letters Patent, with all costs 

covered for four years $ 45.00 in advance. 

Gov. fees extending over nine 

years of the term (payable in 

yearly installments) 750.00 

Cost of lodging for the whole 

nine years 22.50 

Total for fourteen years $817.50 

If the patentee should desire to extend this term 
of fourteen years, the Judicial Committee of the 
Privy Council is empowered to prolong the patent 
for a further term, not exceeding fourteen years. 



ENGLISH PATENTS. 77 

To obtain this extension, the Privy Council must 
be properly petitioned through the attorney, and 
the required fees v/ill be demanded six months 
before the expiration of the original term of four- 
teen years. 

Unlike the patent-laws of Canada and most for- 
eign countries, requiring compulsory manufacture 
within a limited period, the English patent-laws 
do not make a patent void for the reason of non- 
manufacturing or importation into the country. 

Any person using the word ^^ patent," "patent 
registered," when no patent or registration has 
been granted, is subject to a penalty of ^5 ($25.00) 
for every offense. 

The English patent-office was transferred to the 
Board of Trade in 1883, and became one of its 
most important departments. The year following, 
new patent-laws went into effect, which seemed to 
give new impetus to the system in England, as the 
annual statements show that the number of patents 
applied for and granted, have more than doubled 
since then, and are steadily increasing. The first 
foreign patent was granted to David Hurtly,of West- 
minster, on a process for tempering steel, in 1792. In 
the year 1800, there were about one hundred Eng- 
lish patents issued. In 1895, there were twenty- 
five thousand three hundred and eighty-six appli- 
cations made for English patents, and twenty-one 
thousand two hundred and thirty applications for 
designs. In the patent-law revision of 1884, a pro- 



78 PATENTED INVENTIONS. 

vision was made that " an inventor may cooperate 
with any other person or persons in making an 
application for a patent. The patent to be issued 
to all conjointly, and their names attached to the 
royal letters patent, with the name of the inven- 
tor especially designated as ^ the inventor.' " This 
law acts to the advantage of the inventor, not 
only in allowing him to share the enormous ex- 
pense of holding an English patent for the whole 
term but one or more reliable business-men, asso- 
ciated with him as patentees, will assist very 
materially in the working or other disposition of 
the patent. 

The different ways that are open to patentees 
for making or disposing of a patent in England, 
are about the same as in the United States.^ It 
is said, ** that there is great demand there for 
the valuable inventions of Americans," and Mr. 
Edison is credited with saying that ^' he never 
made money on his patents anywhere but in Eng- 
land." 

The question naturally arises, how this can be 
done by a foreigner? It will be found the case 
here, as elsewhere, that the patentee or business 
man associated with him, must have the personal 
supervision of the development of the patent. 
Patent attorneys in England are generally able and 
willing to supply addresses of leading capitalists 

1 See Part II. 



ENGLISH PATENTS. 79 

and manufacturers, the latter generally having 
branch-houses in London. They also often adver- 
tise to negotiate the sale of patents on commission, 
at fixed charges, for their clients. 

Designs. 

The " law of publication " refers to " designs,*' 
as well as other patents, according to the following 
exaction: " Any design which is new and has not 
been previously published in the United Kingdom, 
may be registered. Registered designs are appli- 
cable to any article of manufacture, or to any sub- 
stance artificial or natural, or which is applicable 
for the pattern, or for the shape or ornament 
thereof. On making application for the registra- 
tion of a design, the applicant has to state to what 
article or articles, in each class, the design is to be 
applied. When registered, a certificate of registra- 
tion is granted to the proprietor of the design. 
An applicant who registers a design, may frequently 
protect the design in several branches of industry, 
at one and the same cost, as the classes are not 
numerous and are very comprehensive. Each 
article to which a registered design is applied 
must, before it is offered for sale, bear the pre- 
scribed mark denoting that the design is registered. 
Charges for registration of a design for five years 
are £,\>\ (about five dollars.) - 



^ Horn's Guide to Patent-Laws. 



80 PATENTED INVENTIONS. 



Trade Marks. 

Owing to the increased exportation of articles 
and machines made in America, the extreme advis- 
ability of the registration of the trade-marks identi- 
fied with these exports is urgently advocated. 

^^ Goods to which trade-marks are applicable, 
are classified under fifty classes, and a trade-mark 
must be registered for particular goods, or classes 
of goods. The applicant for registration must fur- 
nish to a London solicitor a list of the goods to which 
it is applied, and the date when the mark was first 
used. Then the necessary forms and instructions 
will be forwarded. Charges (payable in advance) 
for British registration of one trade mark in one 
class for fourteen years is j[^^ ($25.00)." * 

Patents in India. 

Vigorous efforts are being made to stimulate 
local industries in India through an improved pat- 
ent system and a closer connection with the Eng- 
lish patent-office. Perfected laws and regulations 
are still in embryo, but the revised patent-office 
laws of India will probably embodv the same rules 
as those adopted in England. So that inventors 
seeking an Indian patent can be governed by the 
laws and rules laid down regarding English 
patents. 

There is already a marked annual increase of 



Horn's Guide to Patent-Laws. 



ENGLISH PATENTS. 8l 

applications for patents in India, and from statis- 
tics compiled by a patent attorney in Calcutta/ 
and dating through the past six years, it was found 
that of the total number of applications for patents 
filed annually in the Indian patent-office, the 
United States averaged nearly one-third of the 
whole. Mr. Tourri says, in The Inventive Age : 
'' One of the articles of the Indian patent-laws 
offers special encouragement to would-be inven- 
tors, at home and abroad, with regard to the pur- 
chase and subsequent working and manufacture 
by the Indian Government of inventions of a mili- 
tary or marine character. In the marine depart- 
ment, particularly, inventions that are new, useful, 
and readily applicable, are always welcome. One 
of the * articles ' reads: 

**i. Persons who desire to submit any invention for the 
military or marine services for consideration, should da so 
by letter addressed to the Deputy Secretary to the Govern- 
ment of India in the Military Department. The letter should 
state the nature of the invention, and whether an exclusive 
privilege has been acquired, and if so, it should quote the num- 
ber and date of the specification filed. It should also state 
whether the person who offers it for consideration desires 
to make any claim for remuneration in connection with it. 
In the absence of such a statement, it will be assumed that 
no such remuneration is expected. 

" A large field offers itself for inventors of textile 
machinery, paper and soap-manufacturing machin- 



^ Messrs. Cantwell & Co., Calcutta, India. 



82 PATENTED INVENTIONS. 

ery, cotton-ginning and grain-hulling machinery, 
electric and steam labor-saving devices, as a very 
large industry has of late years sprung up in all 
these branches in India, more especially in the 
Western Presidency and Oudh, which bids fair to 
be the Lancashire of the East; cotton, jute, silk, 
and textile fabrics commanding a large export," 



CHAPTER VII. 

GERMAN PATENTS. 

A German patent covers Prussia, Bavaria, Baden, 
Saxony, and Wurtemberg. The whole term is fif- 
teen years. 

The patent-office has its seat in Berlin, and con- 
sists of a President (nominated by recommenda- 
tion of the Federal Council) and two classes of 
" Members " (nominated by the Emperor). First — 
"Technical Members," who are experts in different 
branches of industry, and are appointed either for 
five years or for life. Only those who are appointed 
for life may act in the '^ Application Department," 
and in this department there must be three " Mem- 
bers," of which two must be " Technical Mem- 
bers." 

Second — '^ Judicial Members," who are qualified 
for a judgeship, or the higher administrative ser- 
vice; these may also occupy an office in Impe- 
rial or State service; when they do, the term of 
their patent-office connection is for the duration 
of the State office, or for life.^ 

Patents are granted in Germany for new inven- 
tions which permit of an " industrial exploitation." 

^ Amended German Patent-Laws, 1891. 



84 PATENTED INVENTIONS. 

Many things that come under the head of patent- 
able inventions in the United States are not so held 
in Germany. 

Exceptions are: First — Inventions, the exploita- 
tion of which would be incompatible with the laws, 
or good morals. Second — Inventions of articles of 
food, drinks, and medicines, as well as substances 
manufactured by a chemical process, in so far as 
the inventions do not relate to a distinct process 
for manufacturing such article. Under the first 
exception are included many kinds of tools or im- 
plements, but a provision is made for the protec- 
tion of such inventions for the limited period of six 
years, and the cost of such protection is less than 
that of an Imperial patent. German patent-laws 
allow also '* patents of addition," and if the inven- 
tion relates to an improvement or further perfec- 
tion of an invention previously patented by the 
applicant, the same can apply for a patent of addi- 
tion, which terminates with the original patent. 
The period between the date of application for the 
patent of addition and the next following com- 
mencement of the life of the original patent, is con- 
sidered as the first patent-year of the *^ patent of 
addition." If the original patent is annulled forany 
reason, the patent for addition may become an in- 
dependent patent, the date of the priority of the 
original patent determines the duration of the same 
and the date when the annuities become due.^ 

^ Amended German Patent-Laws, 1891. 



GERMAN PATENTS. 85 

The time for Americans to make an application 
for a German patent is the same as that for an 
English patent, that is, before the issue of a United 
States patent, on account of the " law of publica- 
tion," which is still enforced in Germany in regard 
to the United States; although the amendment of 
1891 *^ limits the time of application to within three 
months of the official publication in Germany of an 
invention previous:ly patented in a country where 
reciprocity is guaranteed to German subjects, and, 
which is so recognized by the Imperial Chancellor 
and published in the Imperial Gazette/* Ameri- 
can inventors, who are cognizant of the amended 
patent-laws of Germany, which went into effect 
October, 1891, naturally conclude, that on account 
of the liberality of the United States patent-laws 
toward foreigners, our country should be included 
in the official publication of those States which 
guarantee corresponding privileges to the German 
inventor. But, notwithstanding the Chancellor 
has been urgently solicited to order this publica- 
tion, at the present writing it has not been done, 
and United States inventors are debarred the priv- 
ilege of the three months' extension in which to 
make an application, after the issue and consequent 
publication of a home patent. 

Applications which are not made out in the Ger- 
man language, will not be taken into considera- 
tion. Similar to the English patent-law, the first 
person applying for a patent, whether he is the 



86 PATENTED INVENTIONS. 

true inventor or not, is entitled to claim the grant 
of the same; but this will not be a legal patent, 
if the essential parts of the invention are taken 
from the models or drawings of another person 
without his consent. When opposition is raised by 
such person, while the application is pending, a 
patent will be allowed only to the inventor. But 
if objections are not made until after the issue of 
such patent, it must be done within two months 
after the publication. After the commencement 
of the procedure for the annulment or revocation 
of a patent, a declaration respecting the same must 
be made by the patentee to the patent-office within 
one calendar month. 

When an invention is the subject of the patent of 
a prior applicant, a subsequent application cannot 
form the basis of a patent, but in case the supposi- 
tion is in part correct, the latter applicant is entitled 
to the grant of a correspondingly limited patent. 

Under the old German patent-law of 1887, there 
was no examination of the claims of applications 
at the patent-office, and many of them were 
rejected without a valid reason being given; the 
new law provides that " a preliminary examination 
must be made, and the applicant notified of objec- 
tions." Also, that "personal intercourse can be 
had with the examiner, if desired." Thus an oppor- 
tunity is afforded for explaining any part of the 
specifications which have not been made clear in 
the translation or otherwise. An Appeal Division 



GERMAN PATENTS. 87 

is provided, consisting of five members, the 
"examiner" not constituting one of them. When 
the patent-office considers the grant of a patent 
advisable, the publication of the application is 
ordered in the Imperial Gazette^ and a patent-deed 
sent to the inventor. Alterations can be made in 
the specifications up to the publication of the 
application, but twenty marks (^i, or $5.00) will 
be demanded tO defray the costs of the procedure. 
The date of the patent commences from the day 
next following the date of application for a patent. 
The first annuity of thirty marks (;^i.io.o) must 
be paid within the specified term of two months 
after the publication, otherwise the application 
will be considered as withdrawn. When the pre- 
liminary examination makes it appear that the 
application does not comply with the prescribed 
requirements, the applicant will be duly notified 
and requested to make the desired amendment 
within a specified time. When the application is 
found not to be a patentable invention, and rejected 
for lack of novelty, or for the reason of having been 
introduced into the realm before application for a 
patent was made, the applicant is duly informed 
of the same, and the reasons given. An appeal 
may be taken from the examiner's decision within 
one calendar month after the receipt of the said 
decision. The sum of twenty marks (^i, or $5.00) 
must be paid on filing an appeal. If it is not paid, 
the appeal is considered as not raised. 



88 PATENTED INVENTIONS. 

When persons have already employed the inven- 
tion in the German Empire, on which a patent is 
sought ; or made the necessary arrangements for 
using the same, any subsequent application by a 
patentee for a patent on this invention, will have 
no effect against such persons. 

An applicant for a patent, not residing in Ger- 
many, is only entitled to a patent-grant, and the 
rights proceeding from the same, when he has 
appointed a representative residing in the German 
Empire.^ 

The patent-office keeps a record of the subject 
and duration of patents granted, together with the 
names and addresses of the patentees, and their 
representatives appointed at the filing of the appli- 
cation. The commencement, expiration, abandon- 
ment, annulment, and revocation of patents are to 
be entered in these records, and at the same time 
published in the l7iiperial Gazette. 

Working the Invention i?i Germany. 

Section ii of the amended German patent-law 
reads: "A patent can be revoked after the lapse of 
three years, from the day after the publication in 
the Imperial Gazette^ if the patentee neglects to 
work his invention in the German Empire to an 
adequate extent, or to do all that was requisite for 
securing the said working." An article in The 
Inventive Age says: "Germany ranks next to Eng- 

* Section 12, German Patent-Laws. 



GERMAN PATENTS. 89 

land in the appreciation on the part of manufac- 
turers and capitalists of good American inven- 
tions, and American tools and machines are seen 
everywhere. The true inventor, however, is not, 
in many cases, protected by a German patent, but 
the enterprising German has copied the machine 
or article, which he thought would create a 
demand in his own country, and in many instances 
even taken out a German patent in his own name, 
for the purpose of securing the monopoly of a 
remunerative invention." 

Cost of a Gerinan Patent in Germaiiy? 

** The expense of a patent, with first year's annu- 
ity, is thirty marks (;^i.io.o). An annual tax must 
be paid at the commencement of the second and each 
of the succeeding years of the duration of the pat- 
ent, amounting to fifty marks (;2^2.io.o.) in the first 
case, and increasing by fifty marks (^2.10.0 ) each 
succeeding year. This tax or annuity must be 
paid within six weeks after the same has become 
due. If this time is allowed to lapse without the 
payment due, it must be paid the next following 
six weeks, with a penalty of ten marks." 

" A patentee who can prove that he is in necessi- 
tous circumstances, can be granted a respite for the 
first and second annuity, up to the third year, and 
if the patent lapses in the third year, can be ex- 



^ German Patent-Law, Amendment of 1891. Official 
Gazette, June 30, 1891. 



90 PATENTED INVENTIONS. 

empted from the previous payments due. The 
amount of annuities can be reduced by enactment 
of the Federal Council." 

The cost of a German patent, if procured 
through a United States attorney, will be $ioo, 
which includes the tax for the first year, but an in- 
creasing tax of twelve dollars and fifty cents will 
be required each year threafter.^ 

Although the expense is greater than if the 
patent were procured through an attorney living 
in Germany, it is not considered advisable for the 
average American inventor, with no business con- 
nections in Berlin, to attempt having his patent 
duplicated through foreign agencies without the 
assistance of a United States attorney, who usually 
thoroughly understands the technicalities of the 
German patent-law, and has connections, either 
directly, or through other attorneys making a 
specialty of European patents, with a patent so- 
licitor in Berlin. 

At the annual meeting of the ** Association of 
Manufacturers and Inventors," held recently in 
Washington, Mr. Berliner suggested the question 
of the establishment in the city of Washington 
and other large cities, of Scientific Museums, on 
the order of the ^' Urania " in Berlin. In this great 
establishment are exhibited complete sets of expen- 
sive scientific apparatus of every department, like 
spectral analysis, electricity, sound, light, micros- 

1 "Attorney's Manual" 



GERMAN PATENTS. 9 1 

copy, Crooke's tubes, Hertzian resonators, and, in 
fact, all such instruments as can only be collected 
by richly endowed scientific institutes. 

But the principal addition to this is a trained set 
of scientific assistants, whose duty it is to operate 
for any visitor any of the various apparatus he may 
be interested in. The educational value of such a 
museum, particularly to the great mass of invent- 
ors, who have not had the advantage of college 
training and college facilities, w^ould be very great, 
and the museum can be made self-supporting by 
the charge of a moderate admission-fee. 

In the " Urania,*' in Berlin, there is also a lec- 
ture hall, in which popular scientific lectures are 
given by competent professors at stated intervals; 
for this a moderate additional fee is also charged." 



CHAPTER VIII 



FRENCH PATENTS. 



The patent-laws of France are a combination of 
the patent-laws of England and Germany. Like 
the former, there is no official examination as to 
novelty, and there is the same *^ law of publica- 
tion," which invalidates a patent which has been 
applied for after the issue of a patent on the same 
invention in some other country. A patent is also 
awarded to the first applicant, whether he is the 
true inventor or not, but cannot be enforced when 
it is proved by the inventor that such applicant is 
not legally entitled to it. 

Other provisions of the law are similar to those 
of Germany. Additional improvements upon a 
French patent may at any time be inserted or at- 
tached to the original patent on payment of a 
small fee. The working of the patent is also en- 
forced within a specified time, /. ^., within two 
years after the French patent issues, and cannot 
afterwards cease for two consecutive years, unless 
in either case such inaction can be justified. 

The stringent laws in operation in Canada and 
some European countries, forbidding the impor- 

92 



FRENCH PATENTS. 93 

tation of any part of the machinery necessary to 
work the patented article, are not enforced in 
France. Models and samples of the patented 
invention may be imported by the inventor, after 
obtaining the necessary official permit. But *^ when 
a machine or article is patented in France, and the 
inventor introduces it in its entirety from Germany, 
the patent will become void ; but English-made 
or Belgian-made samples, or commercial articles, 
may be brought into France without breaking 
the patent." ^ A celebrated judgment of the 
French Court of Appeals may be given in this con- 
nection. The patent was for a new article of 
manufacture — an artificial combustible made in 
the shape of bricks (briquettes) — for the manufac- 
ture of which a well-known machinery, described 
in the specification, was applied. The patentee 
had introduced into France a few samples of the 
patented article, amounting to a trifling value, and 
the essential parts of the machinery to proceed 
with the manufacture of his ^^ briquette." The 
courts, in the first instance, mistaking the nature 
of the invention, and otherwise misconstruing the 
whole affair, had decided that the patent had be- 
come voided on account of importation of the 
patented article, after the expiration of the delay 
granted by the law. An appeal was made to a 
higher tribunal, and it was decided that the im- 
portation of a few patented articles as samples was 

^ R. Grimshaw, in The Inventive Age, 



94 PATENTED INVENTIONS. 

no importation in the meaning of the law, and 
that the importation of the machinery to manu- 
facture the patented article cannot affect the 
patent.^ 

When an inventor is unfamiliar with the lan- 
guage of a country where a patent is held, the 
difficulties in developing it will be increased in two 
ways. First — In the case of a complicated inven- 
tion, the translations of specifications and claims are 
not apt to be made so as to convey a thorough 
understanding of the invention in all its bearings, 
and it is difficult for the inventor to understand 
the duties that will be legally incumbent upon him. 
Second — It will prove more expensive to dispose of 
the patent, or start the manufacture through repre- 
sentatives living in the country. 

Trifling, inexpensive devices, are more quickly 
appreciated and adopted by French manufacturers. 
The ingenious little snap-button used to fasten 
gloves, and with which everybody is now familiar, 
was invented by an American, who tried vainly to 
enlist the interest of American capitalists in his 
invention, but none of them could see any promise 
in the tiny bit of mechanism. The inventor finally 
took his invention to France, and had it manufac- 
tured, where it speedily became popular. 

Another instance is that of an American inven- 
tor who had an application for a patent on an 
ingenious paper box rejected at Washington. He 

^ " Canadian Manual of Patent Cases." 



FRENCH PATENTS. 95 

then took his papers to England, personally exam- 
ined the "abridgment of patents" at the British 
patent-office, and was convinced that an existing 
patent found on file there, with claims similar to 
his own, would prevent him from obtaining a valid 
English patent. He then took his model and 
papers to France, where he succeeded in securing 
a patent. He was a shrewd business man, and 
thoroughly understood the French language; these 
qualifications enabled him to use his own efforts in 
disposing of the patent in France, and also to 
retain the services of one of the best attorneys in 
Paris as long as he held the patent. His patent- 
rights were thus guarded most carefully, until 
eventually he disposed of them for a large sum. 
One of our French Consuls,^ writes: — 
" There are many articles of American production 
which might be introduced with profit into this 
and other parts of France at the present time. In 
the rich and beautiful valley of the Isere — a district 
so fertile that it produces in the same season three 
distinct crops — there is a pressing need for Ameri- 
can agricultural implements. The implements in 
use are primitive in pattern and wholly inadequate 
for the service expected of them. I have heard 
a demand for plows and plow-points of American 
manufacture, and I can readily understand the 
earnestness of it, after having seen the crude 



1 Consul Loomis, at St. Etienne. 



96 PATENTED INVENTIONS. 

implements now in use. Harrows, reaping and 
mowing machines, and rakes would also find some 
sale." 

'^ In the city of Paris, there is an annual exhibit 
of new devices and discoveries in industrial science, 
as well as new designs in all branches of artistic 
work, which tends to stimulate the inventive 
faculty, and to keep before the public mind the 
advantages, with pecuniary returns, resulting from 
patented inventions.'* 

The application for a French patent through a 
United States attorney, will require a description 
and drawing of the invention, with a hundred dol- 
lars in advance usually. This sum will cover all 
expenses, including agency and government taxes 
for the first year. The full term of a patent is fif- 
teen years, subject to an annual tax of twenty 
dollars. If the tax remains unpaid at the time 
specified for these annual payments, the patent 
becomes void. 

During the past year there were granted in 
Paris 8,356 patents and 1,501 " certificates of addi- 
tion." The greatest number of inventions in any 
one class was for velocipedes, there being 771 pat- 
ents awarded, and 152 *^ certificates of addition." 

^^The Parisian Inventors' Academy y 

Patentees, who duplicate their inventions in 
France, will generally receive a document of '^ pro- 
visional membership," with the added information 



FRENCH PATENTS. 97 

that, *' after an examination of the valuable inven- 
tion, the Academy has conferred upon you the title 
of Honory Member, with award of the first-class 
diploma and the gold medal. The honorable title 
will be no expense, but if the medal and diploma 
are desired, you will have the goodness to remit to 
the treasurer the nominal sum of fifty francs (ten 
dollars) to defray the cost of the parchment, fram- 
ing, boxing and transportation of the diploma." ' 

As these documents are sent with probably no 
idea of superior merit or value embodied in any 
particular invention, it will be well for the inven- 
tor to take into consideration any possible benefit 
that might follow from the mere possession of this 
diploma and medal, before advancing the money 
required. Certainly it will not increase the value 
of the patent, make the future development of it 
any easier, or secure good results from the manu- 
facture in any shorter time. 



^ A French firm well recommended is that of M. Sautter 
& De Mestral, general patent office, established 1819, 
II Rue Baillif, Paris. Patents, trade-marks, designs and 
copyrights secured in all countries. Searches and opinions. 
Legal matters relating to patents. 



CHAPTER IX. 

PATENTS IN AUSTRO-HUNGARY. 

Previous to the new Austria-Hungarian patent- 
law, which went into effect January, 1894, the 
inventor was obliged to take out two patents for 
these countries, with separate costs and annuities 
for each, although granted on a single application. 
But since that date ^^ the applicant may demand 
protection either in Austria alone, in Hungary 
alone, or in both, and shall deposit his application 
with the Austrian Minister of Commerce, the Hun- 
garian Minister of Commerce, or a separate applica- 
tion with each." ^ When the inventor desires to pro- 
tect his invention in both parts of the empire, he is 
not required to file his application simultaneously in 
both; but by filing in one, acquires a right of pri- 
ority in the other for ninety days from the date of 
delivery of the patent. All questions as to patents 
are to be considered in common by the two Minis- 
ters of Commerce, excepting in regard to the 
'^extension of a patent,'' and decisions as to its 
invalidity, according to the rule — " If the Minister 
of Commerce of one part of the Empire shall not 
consent to an extension, the patent shall be void as 
to that part. The same shall be the case regard- 

^•Patent Laws. 

98 



PATENTS IN AUSTRO-HUNGARY. 99 

ing declarations of invalidity. A patent shall be 
invalid for that part of the Empire where it is so 
pronounced, and may remain in force in the other 
part." ' 

Pate7itable in Austro-Hungary. 

" New products of industry, new methods of 
production, new means of protection. Patents 
cannot be obtained for scientific principles, inven- 
tions of articles of food, drinks, and medicines; or 
for inventions, the exploitation of which would be 
incompatible with the laws of the country." 

One of our Consul-Generals — Mr. Julius Gold- 
schmidt — has recently written an article for The 
Inventive Age^ in regard to the patent-laws and 
regulations of Austria-Hungary, for which he 
desires the " widest publicity." A few extracts are 
as follows: — 

" There is no examination as to the novelty of 
the invention, the only conditions being: (i.) That 
the invention be described (and shown), with suffi- 
cient clearness to enable a person, skilled in the 
respective art, to carry it into practice. (2.) That 
the first annuity is paid, that the two copies of 
specifications and drawings are exactly alike, and 
that all the pieces be properly stamped." 

It is generally unnecessary for the inventor to go 
to much expense in regard to the specifications. ^* As 
in Austria, and most other European countries, only 

^ La Propriete Industrielle, Jan. 1894. 



TOO PATENTED INVENTIONS. 

tracings are required, and as in every case prints 
are accepted, these costs are nominal." *' The pat- 
ent is granted on the exclusive risk and responsi- 
bility of the applicant." It is here, as it is in Eng- 
land, when two or more applications are filed for 
the same invention, all patents will be granted, but 
only that granted upon the first application will be 
valid. And if the owner of a patent can prove that 
the invention of a later applicant was substantially 
the same as his own, the latter will be annulled. 
A patent will expire with the expiration of a prior 
foreign patent, or, if it be proven that the invention 
had been either published in the country, or the 
article or machine imported from some other 
country, before the application for a patent was 
made. 

The Working of the Patent. 

The owner of the patent must commence to 
work his invention within one year after the patent 
is issued, in that part of the Empire for which it is 
held. If held in both Austria and Hungary, it 
must be worked in both countries within the year. 
The working cannot be suspended during any two 
subsequent years of the legal term of fifteen years 
without forfeiting the patent. 

The Cost and '''Holding " a Patent in Austro- 
Hungary. 

Mr. Goldschmidt continues: "The American 
inventor pays to his attorney at home the average 



PATENTS IN AUSTRO-HUNGARY. lOl 

price of one hundred dollars for \h^ first term of 
every European patent. The attorney is probably 
not in a position to bring the patentee in connec- 
tion with the proper persons abroad for placing 
the patent, and in Austria-Hungary, as previously 
stated, it must be worked within one year ; so that 
the expense of legally holding the patent will be at 
once very great, unless the inventor has taken the 
precaution to have a representative in the country, 
who will get it accepted by a manufacturer with 
royalty, or possibly effect the sale for a small 
amount. The actual cost of obtaining an Austro- 
Hungarian patent in the country itself is : First 
year's annuity, 26,25 Aoi'ins ($1 i.oo). Cost of stamps, 
five florins ($2.00). Total cost of a patent for fif- 
teen years, including only one annuity, on an aver- 
age, $13.00. 

Notwithstanding the cost is so much less, when 
the patent is procured through a solicitor residing 
in the country, the inventor will find it exceedingly 
difficult, and seldom to his advantage, to attempt 
obtaining the patent through other than a United 
States attorney, the reasons being the same as 
those given at the end of the chapter on German 
Patents. 



PART SECOND 



CHAPTER I. 

SELLING THE ENTIRE PATENT-RIGHT TO AN 
INVENTION. 

When the inventor receives letters patent for a 
new conception, the question soon arises in regard 
to the immediate disposition of the patent. Gener- 
ally the first idea is to sell the entire patent-right, 
and, as the natural supposition is that purchasers 
will readily be found as soon as the merits of the 
invention become known, inventors often place the 
patent in the hands of agencies to advertise through 
circulars or periodicals. In many other cases pub- 
licity of the invention is sought through the per- 
sonal efforts of the inventor. Copies of the specifi- 
cations with drawings of the invention are sent to 
different addresses; or merely notices, calling atten- 
tion to the superior merits possessed by the inven- 
tion, for which the patent has been granted. It 
will not usually be deemed advisable to follow 
either of these courses. 

The former will often lead to results as stated in 
the chapter on " Patent Agencies," and the other, 
provoke correspondence with individuals or firms 
that will in no way advance the interests of the 
inventor, and in some instances will really endan- 

105 



Io6 PATENTED INVENTIONS. 

ger the value of the patent by suggesting the idea 
of the new article or machine, or improvement 
upon something already in use, to other persons, 
who are able to work up the idea in a different 
form without infringing the patent. When 
the inventor is personally unable to promote 
the sale of his patent, either through business 
incapacity, want of time or capital, it is advisable to 
associate with him at once some reliable business 
man to act for or in connection with him. The 
first efforts to sell a patent will develop the fact, 
that a personal interview is absolutely necessary 
with those whose cooperation or assistance is 
desired, in order to gain even a footing in the 
attempt to push an invention into our manufac- 
tories, where the avenues to the different industries 
are crowded, and where the use of the new inven- 
tion would, in many cases, necessitate new machin- 
ery or appliances, and sometimes the starting of a 
new factory. But as it is useless to seek advice 
from those who are in no position to give material 
assistance, it is advisable to decide at once upon 
those with whom it would be advantageous to 
seek an interview, with a reasonable prospect of 
eliciting an interest in the patent. 

The Inventive Age has published lists of manufac- 
turers in all the different branches of indus^r}^ as 
well as dealers in the products of these factories.^ 

' The Inve7itive Age, Washington, D. C. Price of lists 
$i.oo each. 



SELLING THE PATENT-RIGHT TO INVENTION. 107 

The patentee will be aided by sending for a list 
of factories making articles, or using a process or 
machinery that comes under the class of his 
patented invention. This list will prove a very 
general one, containing, possibly, addresses of but 
few firms with which it would be to the inventor's 
advantage to communicate. Which these are, can 
be determined by submitting the list to one or 
more wholesale dealers in the article, machinery, 
or things manufactured by the machinery, for 
which the patented improvement is intended. An 
endorsement from them of the recognized merit of 
the invention, addressed to the superintendent, 
business manager, or perhaps stock-holders of the 
factory, with which they have business connections, 
will in most cases insure to the inventor a hearing 
at least, and perhaps lead to a serious considera- 
tion of the value of the invention in connection 
with the established industry. 

It is well, however, for the inventor to be pre- 
pared, before seeking these interviews, for the dif- 
ficulties that, in all probability, must be met and 
contended with, and thus be enabled to cope with 
them promptly and understandingly. ^^ Just as 
years ago Morse traveled about the streets of 
Washington with the plans and specifications of 
the telegraph apparatus, trying to make people 
believe in the possibility of transmitting thought 
for miles by wire, only to be ridiculed and thought 
to be impracticable, so the inventors of to-day 



lo8 PATENTED INVENTIONS. 

must expect rebuffs; and in their first efforts 
towards effecting a sale of their patent will doubt- 
less be brought face to face with the fact, that it is 
difficult, and often impossible, for an unknown 
inventor to induce capitalists to hazard an invest- 
ment in an untried thing." ^ The mere fact that a 
thing is new, is often enough to condemn it, and it 
is so customary for condemnation to come first, 
and investigation afterwards, that it has become a 
well known fact, *^ that no great discovery or 
invention was ever made that was not forced to 
meet and overcome the active or passive opposition 
of scientists or capitalists." The chief obstacles to 
be met, when the invention is not of the very sim- 
plest nature, will come. First — from manufacturers 
who are already engaged in a large and lucrative 
business, and have no desire to increase their risks 
and responsibilities, as well as additional expense, 
in adapting machinery and labor to the new inven- 
tion. Second — " The invention may be of such a 
nature that if it meets a popular demand when 
successfully developed and put upon the market, 
it will sweep away plants that represent millions of 
dollars. Capitalists hesitate to identify themselves 
with such an invention. They understand the dif- 
ficulties and great opposition that must be encoun- 
tered at every step of their endeavors to supplant 
others who have previously enjoyed the great gains 
of the monopoly ; and the almost certain costly 
^ The Inventive Age, 



SELLING THE PATENT-RIGHT TO INVENTION. IO9 

and tedious litigations from infringement suits, 
that will eventually follow." ^ 

'^ It is also true, that when a fundamental prin- 
ciple is patented broadly, and when that patent is 
controlled by a strong company, other companies 
are discouraged from entering the same field of 
manufacture through a new invention analogous 
toit."^ Third — The board of managers of some 
of our large manufacturing companies have de- 
cided not to recommend new inventions represent- 
ing specific appliances in the line of their manu- 
facture. Many of the railroad and sleeping-car 
companies act in accordance with this rule, and 
improvements cannot be adopted, unless sanctioned 
by the State Railroad Commission. 

The principal cause of failure in these interviews 
with capitalists, to produce enough interest in the 
invention to cause an examination made into its 
merits, is due almost entirely to the fact that they 
are so often sought without any preparation what- 
ever, and the invention submitted is in a rough, or 
inoperative state. Business men have not the time 
to study out the advantage of a new device or pro- 
cess presented to them in a crude form, or to listen 
to long and tedious explanations. Consequently 
the inventor should prepare himself as carefully 
and thoroughly as he would for any other new 
business venture, and be ready to overcome the 

^ The Invefitive Age. 

^ E. L. Arnott, in The Inventive Age, 



no PATENTED INVENTIONS. 

objections to his invention, which will invariably be 
raised. These objections may be classified : 

First, — Want of Novelty^ 

or lack of sufficient novelty over other similar 
things known to be in use or operation; or perhaps 
only on file at the patent-office. To meet this 
objection, the inventor should have specimens, if 
possible, and, if not, drawings of everything to be 
found in the market, which is similar in external 
appearance or in resultant action to his invention; 
also copies of any prior patents on file at the pat- 
ent-office (although never utilized), which his own 
claims might be said to have trespassed upon. 

Copies of the Specifications and Drawings^ 

possibly will be required, as when there is any 
serious intention of either purchasing a patent, or 
manufacturing with royalty, these papers are sub- 
jected to the closest legal examination in compari- 
son with the claims of prior patents on similar inven- 
tions, in order to be assured of the validity of the 
patent in question. If it is found that there are 
even any technical errors in the specifications, or 
that the claim is not sufficiently broad and compre- 
hensive to embrace the working results as repre- 
sented in the drawing, the patent will not be con- 
sidered a valuable one. 



SELLING THE PATENT-RIGHT TO INVENITON. Ill 

Second, — Expense to be Incurred in Reducing the 
Inve?ition to a Working Result, 

In connection with this difficulty, there will be 
the uncertainty of manufacturing a new thing by 
machinery and methods already in use, at a price 
which will insure a profit when put upon the mar- 
ket. This objection can be met and perhaps set- 
tled by the aid of a carefully and neatly made 
model, w«hich shows the invention perfected and 
reduced to actual working results. Thus enabling 
the business man to grasp at once the new idea 
embodied in the invention, with the advantages it 
possesses over other similar patented articles or 
machines, and the approximate cost of the manu- 
facture in quantities. 

If the inventor starts out with a rough or incom- 
plete working model, the patent may be endan- 
gered in two ways — (i) By failing to enlist the 
cooperation of business men through an imperfect 
or unsatisfactory representation. (2) ^' By suggest- 
ing the idea to shrewd experts, who, recognizing 
the errors of construction, might be able to so 
avoid the claims of the patent carried out in the 
model, as to embody the idea in a new and sepa- 
rate invention, bring it to a speedy and successful 
issue, and so ruin the prospects of the original 
inventor." 

A word of caution just here in regard to the 
making of models, may not come amiss. The 
skilled mechanic or professional model-maker will 



112 PATENTED INVENTIONS. 

often suggest changes in the invention, either to 
perfect it in its resultant action, or, by simplifying 
it, lessen the cost of manufacture. These sug- 
gestions are, in many cases, valuable ones, and can 
be acted upon without any detriment to the pat- 
ent; while in other cases the result would so 
materially affect the novelty or practical working, 
claimed in the specifications, as to invalidate the 
patent when the article or machine came to be 
manufactured, and its legality questioned. 

A Type-written Description of the Invention 

should be used by the inventor in connection with 
the model. I'his should be clear and very concise, 
stating also whether the inventor holds any for- 
eign patent on his invention, and if he is the sole 
owner of the patent; if not, what rights, territory, 
or privileges have been assigned. 

With these preparations, the inventor is en- 
abled to state the case briefly and succinctly, 
and it is the only way in which he can hope to 
have the merits of his invention carefully looked 
into. 

The principal points a manufacturer or capitalist 
generally takes into account are: 

(i.) The cost it will entail to make use of the 
improvement in any way, and whether the manu- 
facture will necessitate new machinery, new appli 
ances, or new methods. 

(2.) Whether it is a commercial possibility, and 



SELLING THE PATENT-RIGHT TO INVENTION. IIJ 

the probable demand for the article or improve- 
ment. 

(3.) If an article of commerce, whether the gain, 
after the first cost and selling price are deter- 
mined, would be sufficient to justify the outlay of 
the necessary capital to manufacture on a commer- 
cial scale. 

(4.) If a machine, or improvement upon a machine, 
whether it simplifies or quickens the working re- 
sults, so as to lessen the number of employees 
required, and turn out larger quantities of goods, 
or, if its use will, in any way, save money in the 
manufacture of an article in general use. Manu- 
facturers know full well that lessening the cost of 
manufacture, of even one cent on any one article in 
general use, will make a difference of thousands of 
dollars annually in the aggregate cost of manu- 
facture. 

Some of these points it is possible for the 
inventor to understand and be prepared to answer, 
which will often facilitate the manufacturer's deci- 
sion in regard to the patent. The model generally 
settles the cost of a specimen, and the fact of its 
probable commercial value. 

The probable demand can be determined thus, 
according to an article contributed to The Inventive 
Age : *^ After the first cost and selling price are 
determined, the inventor might find out how many 
of the improved articles could be sold, provided 
everybody having use for the invention could be 



114 PATENTED INVENTIONS. 

induced to purchase. This will be the entire pos- 
sible market, of which the actual one would, in all 
probability, be not more than one-third. The 
entire possible market varies so much with differ- 
ent inventions that it is only practicable here to 
suggest a few articles. Take, for example, the 
invention of a rubber heel for shoes. Every per- 
son in the United States would be a possible buyer. 
For an article where only one would be used in a 
family, the possible market would be indicated by 
the number of families, which is estimated to be 
about one-eighth of the entire population. There 
are inventions used by people in some special trade 
or profession, and the number of such people will 
indicate the entire possible market. The census 
reports are so full and complete, that nearly every 
question as to the number of people engaged in a 
specific business can be settled by consulting sta- 
tistics given therein." ^ 

When patents are submitted to capitalists for 
investigation, with a perfect understanding of the 
invention in all its parts and bearings, and a sys- 
tematic way of presenting the claims, they can 
generally decide quickly, whether the additional 
gains, or other advantage due to the improvement, 
will be sufficient to justify the investment of capi- 
tal, and the risk which may be incurred, together 
with the probability of the working results of the 



^ J. A. Minturn. 



SELLING THE PATENT-RIGHT TO INVENTION. II5 

invention netting a large profit on the cost of the 
patent. 

The few patents that are sold outright for an 
amount even approximating the inventor's valua- 
tion, are (i) Simple contrivances, that can be devel- 
oped and put upon the market without much 
expense. (2) Those which have been proved to be 
a working success, and show a strong probability 
of creating a demand. (3) Those which are con- 
sidered advisable to purchase for the purpose of 
keeping others from using the invention, or pre- 
venting the manufacturer from turning out articles 
analogous to them in their factories without their 
consent, thus keeping down competition. For 
instance, the National Harrow Company, it is 
understood, owns upward of one hundred United 
States patents by purchase. They, in their turn, 
holding the monopoly, have granted licenses to 
build and market their harrows in all parts of the 
country. 

Generally^ the sale of a patent is effected for a 
very small amount. Many implements and articles 
of commerce, which have become of great value 
through the patents held upon them, have netted 
the inventor but small returns. Charles Tappen, 
the discoverer and inventor of vaseline and other 
petroleum cerates, sold his patent for six hundred 
dollars to parties who made a large fortune 
from it. 

The purchasers of patents for machines, and 



Il6 PATENTED INVENTIONS. 

Other complicated patents, often oblige the inven- 
tor to take a large amount of the purchase price 
in the stock of the incorporated company for the 
manufacture in accordance with the patent. For 
instance, a machinist of Pennsylvania spent thirteen 
years in perfecting and bringing to actual working 
results an invention for making the " forged twist 
drills " by machinery, by the use of which steel is 
forged much more rapidly and thoroughly, with a 
saving of one-third in the raw material. He finally 
received an offer for his patent from a drill and 
twist company for ninety thousand dollars, but 
was obliged to take three-quarters of this amount 
in the stock of the company. 

Between the buyer and seller of a patent the 
assignment is at all times valid without being 
recorded, but the law requires that an assignment 
to be valid as to third parties, must be recorded 
in the United States patent-office within three 
months. 

Form of assignment of the entire interest in 
Letters patent: ^ 

Assignment of the Entire Interest in Letters Patent, 

Whereas, I, , of , county of 

State of , did obtain Letters Patent of the United 

States for an improvement in , which letters patent 

are numbered , and bear date , i88 — ; and 

whereas, I am now the sole owner of said patent. 



^ "Attorney's Manual." 



SELLING THE PATENT-RIGHT TO INVENTION. II7 



and of all rights under the same ; and whereas, 



, of Chicago, County of , State of , is 

desirous of acquiring the entire interest in the same : 

Now, therefore, to all whom it may concern, be it known^ 
that for and in consideration of the sum of five thousand 
dollars to me in hand paid, the receipt of which is hereby 

acknowledged, I, the said , have sold, assigned, 

and transferred, and by these presents do sell, assign, and 

transfer unto the said the whole right, title, 

and interest in and to the said improvement in , 

and in and to the letters patent therefor aforesaid ; the 

same to be held and enjoyed by the said , 

for his own use and behoof, and for the use and behoof of 
his legal representatives, to the full end of the term for 
which said letters patent are or may be granted, as fully 
and as entirely as the same would have been held and en- 
joyed by me, had the assignment and sale not been made. 

In testimony whereof, I have hereunto set my hand and 

afifixed my seal, at , County of and State of 

, the 14th day of December, A. D. 1884. 

. [Seal.] 



In presence of 

Selling the Right to Manufacture a Patented Article^ 
or the Use of a Patented Process. 

Manufacturers frequently purchase from an in- 
ventor ** the right " to make and sell, or use, a pat- 
ented article or process. The right to use the 
" Bessemer Process *' for making steel was pur- 
chased quite extensively, both in Europe and the 
United States, and enormous fortunes have been 
made by those who made use of the process in 
their manufacturing business. Mr. Bessemer still 



Il8 PATENTED INVENTIONS. 

kept control of the patent, and reaped both fame 
and great pecuniary reward in return for the long 
years of persistent labor spent in perfecting the 
valuable process. He has also testified ^^ that he 
spent $20,000 in gold before he produced one 
pound of steel." 

Fonti of License for the Right to Manufacture 

and Sell. 

In consideration of fifty dollars, to be paid by the firm of 

S. J. & Co., of , in the County of , State of 

, I do hereby license and empower the said S. J. & 

Co., to manufacture in said [or other place agreed 

upon], the improvement in , for which letters patent 

of the United States, No. , were granted to . dated 

, 188 — , and to sell the machines so manufactured 

throughout the United States, to the full end of the term for 
which said letters patent are granted. 

Witness my hand this day of . 18 — , 

A B 

Selling State Rights, 

This course is so generally recommended in the 
advertisements of " selling agents," that patentees 
are apt to consider it one of the most desirable 
ways of disposing of a patent. When, as a matter 
of fact, it should only be resorted to, in most 
instances, when all other efforts fail in making a 
satisfactory disposition of the patent. If a patentee 
starts out by selling the patent-right for even one 
State, he will find it much more difficult to dispose 
of the remaining interest. When a moneyed man 



SELLING THE PATENT-RIGHT TO INVENTION. II9 

invests in a patent, he naturally demands the ex- 
clusive monopoly of the manufacture under it, 
particularly when the patented machine or device 
will probably create a demand throughout all parts 
of the country. 

When the use of an invention is limited to indus- 
tries which are only developed to their fullest 
extent in certain States or Territories, as inven- 
tions pertaining to specified agricultural pursuits; 
those for harvesting and packing different kinds of 
fruit, and many mining inventions, it will, in 
many such cases, prove advisable to sell State 
Rights for the manufacture under the patent. But 
these sales must be effected through honorable par- 
ties, in order to net the inventor the returns he will 
be entitled to. 

There is no State law preventing the sale of 
State or Tertitorial Rights. 

Form of Assignment of State or Territorial Interest, 

Whereas, I, Q. X., of , County of , State of 

, did obtain letters patent of the United States for 

[giving title] , which letters patent are numbered, 

and bear date the day of , in the year 

one thousand eight hundred and ; and, whereas, I am 

now the sole owner of said patent and of all rights under 
the same in the below recited territory ; and. whereas, 

W. O., of , County of , State of , is 

desirous of acquiring an interest in the same : 

Now, therefore, to all whom it may concern, be it known 
that for and in consideration of the sum of % , to me 



I20 PATENTED INVENTIONS. 

in hand paid, the receipt of which is hereby acknowledged, 
I, the said Q. X., have sold, assigned, transferred, and set 
over, and by these presents do sell, assign, transfer, and set 
over unto the said W. O., all the right, title, and interest 
whatsoever which I have in and to the said invention [or 
improvement] as secured to me by said letters patent for, to, 

and in the State of , and for, to, or in no other place 

or places ; the same to be held and enjoyed by the said W. 
O. within and throughout the above specified territory, and 
not elsewhere, for his own use and behoof, and for the use 
and behoof of his legal representatives, to the full end of 
the term for which said letters patent are, or may be, granted 
[thus including extension] as fully and entirely as the same 
would have been held and enjoyed by me therein, had this 
assignment and sale not been made. 

In testimony whereof I have hereunto set hand, and 

affixed seal this day of , A.D. i8 — . 

In presence of — 

S T , Q X , 

R D . [SEAL]. 



CHAPTER II. 

ASSIGNING TO MANUFACTURERS WITH ROYALTY TO 
THE INVENTOR. 

Patents are fiequently taken by manufacturers 
on royalty, /. e.^ a certain percentage is paid to 
the inventor on each article manufactured, he still 
retaining the ownership of the patent. 

Amount of Royalty 

will depend upon the kind and nature of the inven- 
tion; the cost to manufacture or put into opera- 
tion the new article or machinery, and the selling- 
price which the manufacturer places upon the 
new article or improvement in connection with the 
established business. The inventor's royalty is 
then added to this, increasing the cost to the con- 
sumer or purchaser for that amount. 

On some inventions, where the competition in 
the article, or something analogous to it, is already 
great, or when the improvement is small upon 
something already in general use, the royalty must 
be small, or the selling-price would be too large 
to enable the manufacturer to make a place for it 
in the market. 

It will often prove to the inventor's advan- 



122 PATENTED INVENTIONS. 

tage to have the first specified royalty hold good 
for only one or two years. If the new article in 
the meantime creates a large demand, it will be to 
the manufacturer's advantage to increase the 
royalty, rather than have the license to manufac- 
ture given to some other factory. It sometimes 
happens that the inventor is able to give a license 
to manufacture with royalty to more than one 
party. The a77iount of royalty may then vary ac- 
cording to different circumstances and different 
States in which the licenses are granted. 

The payment of royalty can legally stop before 
the time specified in the contract. As the licensee 
is obliged to pay royalty according to the con- 
tract only so long as he enjoys the exclusive right 
and use of the patent. This may be withheld in 
two ways, entirely regardless of any action of 
the inventor. First. — When suits are brought 
for infringement upon some prior patent, and 
the licensee is compelled to stop " making, 
using, or selling " the article for which a right 
has been conveyed, and thus evicted from the 
enjoyment thereof; the payment of royalty stops 
with it. 

Second. — When the enterprise proves to be finan- 
cially unsuccessful for any reason, during the term 
of the contract, and the use of the patented 
improvement no longer desired, the payment of 
royalty stops, and cannot, according to law, be 
collected for the remainder of the term. 



ASSIGNING TO MANUFACTURERS. I23 

Forfeiture of a License 

" Cannot be enforced by the inventor from the 
single fact that the licensee has broken one or more 
of the terms which were made by him when ac- 
cepting the license; unless the parties expressly 
agreed that such a forfeiture should follow such a 
breach." ' 

** Non-payment of royalty on the very day it 
becomes due, will not w^ork a forfeiture, provided 
the non-payment arose from lack of certainty rele- 
vant to the place of payment, and from lack of de- 
mand from the licensor. Nor will forfeiture of a 
license result from the fact that the licensee has 
infringed the patent, by doing acts with the inven- 
tion which were unauthorized by the licensor. 
The license will not protect him in continuing to 
so do, after a protest has been made, but it will 
continue to protect him in doing the acts which 
it did authorize. Forfeitures are not favored by 
law." ' 

**When a license is really forfeited, and the 
licensee continues to work under it as though it 
were still in force, the licensor has an option to sue 
him as an infringer, or to sue him for the promised 
royalties." 

" No license is assignable by the licensee to an- 
other, unless it contains words which show that it 
was intended to be assignable." ^ 



1 " Walker on Patents," § 307. 2 k 308. ' § 309-310. 



124 PATENTED INVENTIONS. 

The Contract^ as Affecting the Interests of the 
Inventor and Manufacturer, 

Manufacturers, in taking a patent to manufacture 
with royalty to the inventor, are careful to protect 
themselves against any possible loss, and they will 
consider themselves fully guaranteed through the 
terms of the contract, before starting a new enter- 
prise. The contract is drawn up by the licensee's 
attorneys, and inventors are too often careless about 
fully understanding the terms made therein, and 
insisting upon having their own rights properly 
specified and guarded in the license. Such over- 
sight often entails expense and responsibility to the 
inventor, which he may be totally unable to assume. 

The inventor should provide for special con- 
tingencies in the contract. Manufacturers gener- 
ally assume certain responsibilities, and advance 
enough capital to connect the invention with an 
established industry. But in most cases they will 
depend upon the inventor and owner of the patent 
to assist in its advancement, and in the protection 
of the patent-right, and the contract will be so 
worded as to enable them to enforce this action. 

Any litigation which may arise, either in suits 
brought for infringement of the patent, or in legal 
actions for defending the claims of invention, will 
legally rest with the patentee or the owner of the 
patent. An agreement is often formally entered 
into by the terms of the contract, in which the 



ASSIGNING TO MANUFACTURERS. 12$ 

licensee consents to assume all risks, and uphold 
the validity of the patent, if questioned. 

When the patentee desires to keep informed of 
the amount of business transacted, and the meth- 
ods employed by the manufacturer; it is often 
an advantage to have explicitly stated in the con- 
tract the privilege of personally examining the 
books of the company at stated intervals. 

T/ie Meaimig of a License Under a Patent, 

^'- Any conveyance of a right under a patent, which 
does not amount to an assignment or a grant, is a 
license. It is a license if it does not convey the 
entire and unqualified monopoly, or an undivided 
interest therein, throughout the particular terri- 
tory to which it refers. No license, under the 
present statutes, is required to be recorded, but 
there is an amendment now pending by which 
licenses shall be recorded the same as assignments 
and grants, for the reason that licenses are often 
so drawn as to convey away the whole substance 
of the patent-right under the existing law." * 

Licenses Written or Oral. 

" As licenses may be written or oral, licensees 
sometimes take advantage of the law, and refuse 
to enter into a written contract. But there are 
abundant reasons for embodying all such contracts 
in writing; which will act in preventing misunder- 

^ " Walker on Patents," § 296. 



126 PATENTED INVENTIONS. 

Standings and complications on both sides. If 
there should be an oral agreement with one com- 
pany, and an executed agreement with another, 
the courts will hold that the former is not good 
against the latter." ^ 

Actions Brought to Enforce Contracts. 

** Actions brought to enforce contracts between 
parties relevant to patent-rights, are not actions 
arising under the patent-laws of the United States. 
These rules of law are well established.'* ^ 
Reversion of a Patent, 

*"' It is common to have a contract made between 
the patentee and the manufacturer, with conditions 
for the reversion of the patent, or privileges granted 
under the patent, in case the manufacturer should 
fail to comply with the terms of the contract." 

If a party obtains an assignment of a patent 
under a contract, which binds him to use diligence 
in the prosecution of the manufacture or sale, and 
to advance capital for the introduction and pro- 
motion of the patent or patented article, a failure 
to comply with these terms will enable the inventor 
to set aside the contract and recover the use of the 
patent by due process of law. ^ 

Form of License^ Exclusive^ with Contract for Royalty, 
This agreement, made this 20th day of December, 1884, 

between , of , party of the first part, and the 

, a corporate body, under the laws of said State, 

1 *' Walker on Patents," § 363. 2 § 388. ^ ,« inventor's 
Manual." 



ASSIGNING TO MANUFACTURERS. 1 27 

located, and doing business at , in said State, party 

of the second part, witnesseth : — 

That, whereas, letters patent of the United States, No. 

, were, on the day of , 18 — , granted 

to said party of the first part, for an improvement in , 



which said patented article said party of the second part is 
desirous to make and sell. Now, therefore, the parties have 
agreed as follows : 

I. The party of the first part gives to the party of the second 
part the exclusive right to manufacture and sell said patented 
improvements to the end of the term of said patent, subject 
to the conditions hereinafter named. 

II. The party of the second part agrees to make full and 
true returns on the first days of January, April, July, and 

October each year, of all of said patented , made by 

them in the three calendar months last past ; and if said 
party of the first part shall not be satisfied, in any respect, 
with any such return, then shall he have the right, either by 
himself, or by his attorney, to examine any and all the books 
of account of said party of the second part containing any 
items, charges, memoranda, or information relating to the 

manufacture or sale of said patented ; and upon 

request made, said party of the second part shall produce 
all such books for said examination. 

III. The party of the second part agrees to pay the party 
of the first part the sum of twenty cents as a license-fee upon 

every one of said patented made by them, the whole 

of said license-fee for each quarterly term of three months, 
as hereinbefore specified, to be due and payable within fifteen 
days after the regular return day for that quarter. And 
said party of the second part agrees to pay to the party of 
tiie first part at least two hundred dollars, as said license- 



128 * PATENTED INVENTIONS. 

fee, upon each of said quarterly terms, even though they 

should not make enough of said patented to amount 

to that sum at the regular royalty of twenty cents apiece. 

IV. Said licensee shall cast or otherwise permanently 

place upon every such made under this license the 

word *• *' and in close relation thereto, the word 

'patented," and the number and date of said patent. 

V. Said licensee shall not, during the life of this license, 
make or sell any article which can compete in the market 
with said . 

VI. Upon the failure of said licensee to keep each and all 
of the conditions of this license, the said licensor may, at 
his option, terminate this license, and such termination shall 
not release said licensee from any liability due at such time 
to said licensor. 

In witness whereof, the above named parties ( , by 

its president) have hereunto set their hands the day and year 
first above written. 

For7n of License — Not Exclusive — With Royalty, 

This agreement, made this day of , 18 — , 

between , of , in the County of , and 

State of , party of the first part, and the and 

Company, of , in the County of and 

State of , party of the second part, witnesseth, 

that whereas letters patent of the United States, No. 

, for an improvement in , were granted to the 

party of the first part, dated , 18 — ; and, whereas, 

the party of the second part is desirous of manufacturing 
containing said patented improvement. Now, there- 
fore, the parties have agreed as follows : 

I. The party of the first part licenses and empowers the 
party of the second part to manufacture, subject to the con- 



ASSIGNING TO MANUFACTURERS. 1 29 

ditions hereinafter named, at their factory in . and 

in no other place or places, to the end of the term for which 

said letters patent were granted, containing the 

patented improvements, and to sell the same within the 
United States. 

II. The party of the second part agrees to make full and 
true returns to the party of the first part, under oath, upon 

the first days of July and January in each year, of all 

containing the patented improvements manufactured by 
them. 

III. The party of the second part agrees to pay to the 
party of the first part, five dollars as a license-fee upon 

every manufactured by said party of the second 

part containing the patented improvements: provided, that 
if said fee be paid upon the days provided herein for semi- 
annual returns, or within ten days thereafter, a discount of 
fifty per cent, shall be made from said fee for prompt pay- 
ment. 

IV. Upon a failure of the party of the second part to 
make returns, or to make payment of license-fees, as herein 
provided, for thirty days after the days herein named, the 
party of the first part may terminate this license by serving 
a written notice upon the party of the second part ; but the 
party of the second part shall not thereby be discharged 
from any liability to the party of the first part for any 
license-fees due at the time of the service of said notice. 

In witness whereof the parties above-named have here- 
unto set their hands the day and year first above written at 

, County of , State of . 

[Signature,'] 



CHAPTER III. 

MANUFACTURING BY THE INVENTOR, WHILE RETAIN- 
ING EXCLUSIVE OWNERSHIP OF THE PATENT ; 
OR SELLING MINORITY INTERESTS IN THE PAT- 
ENT BEFORE STARTING THE MANUFACTURE. 

A GREAT majority of small, useful inventions are 
of such a nature, and so simple in construction, 
that they can be manufactured at a small cost. 
The inventor will often find it to his advantage to 
avoid business complications and commence the 
manufacture on a small scale. The probable 
demand can then be tested by introducing the 
new thing into one city. If it is successful, with 
a probability of quickly entering into general use; 
or, if the invention is for an improvement upon 
something already in use, and is accepted as a 
valuable one, the inventor may feel justified in pro- 
ceeding with the manufacture. These small begin- 
nings often build up large industries, and the 
inventor thus reaps the full benefit of his work. 
The patent for making the lower end of candles 
taper, instead of parallel, in order to more easily 
fit the socket, made the present enormous business 

of a well known firm of London chandlers. Among 
130 



MANUFACTURING BY THE INVENTOR. 13I 

the more recently patented novelties, which the 
inventor has personally and quickly brought to a 
paying issue, is an umbrella or sun-shade that can 
be folded and carried in an ordinary bag or shawl 
strap and adjusted as needed. The enterprise 
started in a very small way, but has grown into a 
large manufacturing business. 

There are many other simple inventions which 
have netted the patentee large returns. A few of 
these are, the " return-ball,*' which every one is 
familiar with, consisting of an elastic cord attached 
to a light wooden ball ; the rubber mat for 
change ; inverted glass bell to hang over gas jets 
as a protection to ceilings; metal plates to be 
attached to the worn heels of shoes; perforated 
wooden seats for chairs, and rubber tips for lead 
pencils. 

Then there are the games and puzzles invented 
in such large numbers every year. Many of them 
are protected by a patent, and can be very inex- 
pensively made and put upon the market. When 
a general demand follows, financial success is soon 
assured. Every one has heard of the famous ^* 14- 
15 " puzzle, which was utilized in great numbers 
as an advertising medium first, and afterwards 
sold as a game. Also, the extraordinary success 
of the inventor of the game called ^^ Pigs-in-Clover.'* 
Mechanical toys and Christmas-tree novelties are 
simple inventions, quickly manufactured, and as 
quickly sold. 



132 PATENTED INVENTIONS. 

Many inventors are ignorant of the fact that 
"games and puzzles" are equally well protected 
by a copyright instead of a patent, at about one- 
half the cost, and protection given for a longer 
time. 

Novelty Cofnpanies, 

Inventors who are prevented, from one cause or 
another, in starting individually the manufacture 
of simple articles they have invented, will often 
find it expedient to put their business into the 
hands of those who make a specialty of manufac- 
turing novelties that are easily and quickly made, 
and retail for a small price. Great care must be 
taken, however, that these manufacturers do not 
in any way alter the working principle of the pat- 
ent, and so invalidate it. They sometimes offer 
"to work the invention," subject to some changes, 
either in adapting it to the machinery they already 
have in use for turning out analogous articles, or 
in an attempt to improve it, so as to present a more 
attractive appearance in the market. 

Selling Minority Interests. 

In regard to personally developing patents for 
inventions, which require a greater outlay of time, 
labor, and capital, the inventor will almost invari- 
ably find himself hampered in many ways before 
his undertaking is either an assured success, or has 
proved to be a failure. Many such enterprises 



MANUFACTURING BY THE INVENTOR. I33 

have been helped along materially, and the inven- 
tor thus enabled to proceed with the manufacture, 
by capitalists purchasing an interest in the pat- 
ented invention. " It is stated, that Mr. Edison 
sold minority interests in his patents for duplex 
telegraph, and companies were in that way started 
to manufacture and develop the invention under 
his personal supervision. The Pullman system of 
sleepers, drawing-room and vestibule cars, are 
instances in the same line. A combination was 
made between money and ingenuity, and Mr. Pull- 
man and his associates reaped the rich rewards. 
So it was with the McCormick reaper and mower, 
and the Westinghouse air-brake. Professor Bell's 
telephone is another and most wonderful signal 
illustration of what great corporations and enor- 
mous profits can be built upon a good patent. 
When Professor Bell was trying to introduce this 
patent, he offered a large interest in it to Cyrus W. 
Field, for $10,000; but the ' Bell telephone * seemed 
a small matter to him, and he declined to accept 
the offer. The fact is well known, that immense 
profits have been made by every one who origin- 
ally took interests in the patents." * 



The Inventive Age, 



CHAPTER IV. 

ORGANIZATION OF A STOCK COMPANY TO ADVANCE 
THE MANUFACTURE OR USE OF A PATENTED 
INVENTION. 

It thus becomes a self-evident fact, to those who 
take the trouble to look into the different methods 
pursued by inventors to bring patents to a suc- 
cessful and paying issue, that it is possible for 
inventors who can command but little capital, to 
personally manufacture and place successfully 
upon the market a device or implement which is 
simple in its construction and will require a com- 
paratively small amount of capital to develop it; 
or, through the sale of minority interests, to pro- 
ceed with the manufacture, and advance the sales 
of inventions of a more complex nature. It will 
also become evident, that there are many patents, 
coming particularly under the heads of scientific, 
mechanical and electrical inventions, complicated 
machines or improvements upon a machine, em- 
bodying the finest mechanism, which will not war- 
rant the necessary outlay towards the manufacture 
or use of the patented article on the part of 
the inventor, unless this patented article or im- 

134 



ORGANIZATION OF A STOCK COMPANY. 135 

provcment comes in a line with his own already 
established manufacture. 

It is a well-known fact among business men that 
inventors of these complicated and intricate de- 
vices or machines are, as a general rule, impracti- 
cal and incompetent to organize a stock company 
under the usual methods. When such efforts are 
made, the question is soon apt to present itself: In 
what way can the financial risks for organizing a 
" company " be made so small as to induce capital- 
ists and business men of limited means to hazard 
an investment of a small amount of capital for 
starting the manufacture of a new patented inven- 
tion ? This question will perhaps be more satisfac- 
torily answered by suggestions received through 
the practical experience of others in this line of 
business. 

In one instance the inventor was able to con- 
vince those whose cooperation he desired, that the 
probable demand for the article to be made in the 
proposed factory would guarantee a good dividend 
to the stockholders. The price of shares was put 
very low. The "company** became popular and 
the capital stock grew to large proportions. The 
result was that the patented invention became a 
pecuniary success. 

Another course that has been pursued, is raising 
the requisite amount of capital stock on the 
"installment plan." The Inventive Age says: — 
"There are in successful operation, at the South, 



136 PATENTED INVENTIONS. 

a number of cotton factories constructed with 
money raised on this plan, the payments being 
made as in a building and loan association. The 
plan adopted divided the capital stock of the pro- 
posed factory into shares of one hundred dollars 
each, to be paid in full, as follows: — (i.) At the 
rate of one dollar per week per share, the par value 
would be reached in a little less than two years. 
(2.) At the rate of fifty cents per week, the time 
would be a little less than four years. (3.) At the 
rate of twenty-five cents per week, the time would 
be a little less than eight years. Each of these 
plans has been, tried at Charlotte, North Carolina, 
and in each case the result has been successful. 
Among the mills established under this coopera- 
tive scheme, and now in full operation are: The 
Ada Cotton Mills, with a subscribed capital of 
$128,000. The Alpha Cotton .Mills, with a sub- 
scribed capital of $100,000. The Highland Park 
Gingham Mills, with a subscribed capital of 
$150,000, and the Gaffney Cotton Mills, with a 
subscribed capital of $150,000."^ Inventors, when 
organizing a company for the manufacture of pat- 
ented inventions upon the foregoing plan, should 
stipulate, in accordance with suggestions previously 



^This plan was first suggested by Mr. D. A. Tompkins, 
of Charlotte, N. C, and in a recent publication he describes 
fully the method and successful working in a large number 
of Southern towns. 



ORGANIZATION OF A STOCK COMPANY. 137 

made under other ways of working the patent, that 
the manufacturer should proceed with strict ad- 
herence to the claims of the patent. Improve- 
ments might be suggested, or different methods of 
reaching a similar result, which, if followed, would 
eventually draw the company into expensive liti- 
gation suits. 

Mr. Edison is reported as having said: "I have 
never made money out of my inventions, all I have 
made has been out of manufacturing. My inven- 
tions have not been protected by the patent-office. 
The companies with which I am connected have 
spent millions in trying to defend them. What I 
have made^ has been because I have understood the 
inventions better, and have been able to manipulate 
the manufacturing of them better than the pirates. 
"The foolish idea of not only inventing the 
thing; but of inventing also the machine or ma- 
chines to make it, is one of the rocks on which 
not a few companies have been wrecked. It is not 
necessary for every man to invent every piece of 
machinery that he puts into his factory, for the 
chances are that other inventors and other men 
have built just such machines as are wanted, and 
have made them a great deal better adapted to 
the work than would be possible for what may be 
called an amateur.'* ^ When the machinery re- 
quired proves to be patented machinery, the right 



^ Cassiers Magazine^ 



138 PATENTED INVENTIONS. 

to use it can generally be purchased from the 
owner of the patent, or licensee under it.^ 

When infringement suits develop during the 
course of manufacture, it is customary for capital- 
ists and stockholders to draw upon the inventor's 
share in the enterprise to pay the whole or portion 
of the expenses. And this course is allowed at 
common law. The inventor should guard against 
this danger, and one which he is in many cases un- 
able to meet, by specifying particularly in the con- 
tract that when litigation expenses arise in any 
form, they shall be shared equally by the stock- 
holders. He will be upheld in this course by good 
authorities. Walker says: " A partnership is liable 
for an action for infringement committed in the 
regular course of the partnership business, by one 
or more of the partners, or under his or their 
orders; and also for any infringement committed 
outside of that regular course of business, if it was 
previously authorized or afterwards adopted as the 
act of the partnership by all the partners.^ There 
is a statutory liability of officers, directors, and 
stock-holders, and most of the States have statutes 
which provide that, under various circumstances 
therein specified, " the officers, directors, or stock- 
holders of a company or corporation shall be per- 
sonally liable for its debts or liabilities." ^ 



^ See Part II, Chapter I, p. 117. 

2 ** Walker on Patents," §408. ' § 415, 



ORGANIZATION OF A STOCK COMPANY. 139 

Patented Articles Must be Marked Patented, 

Section 4,900 of the Patent Statutes says: — 
'^ It shall be the duty of all patentees, and their 
assigns and legal representatives, and of all persons 
making or vending any patented article for or 
under them, to give sufficient notice to the public 
that the same is patented; either by fixing thereon 
the word * patented,' together with the day and 
year the patent was granted; or when, from the 
character of the article, this cannot be done, by 
fixing to it, or to the package wherein one or more 
of them is inclosed, a label containing the like 
'notice.'" 

Assignments^ Grants^ License Sy Etc, 

** There are three classes of persons in whom the 
patentee can vest an interest of some kind. They 
are an assignee^ a grantee of an exclusive sectional 
right, and a licensee, 

" An assignee is one who has transferred to him in 
writing, the whole interest in the original patent, 
or an undivided part of such whole interest in 
every portion of the United States. And no one, 
unless he has such an interest transferred to him, is 
an assignee. 

" A grantee is one who has transferred to him in 
writing, the exclusive right, under the patent, to 
make and use, and to grant to others to make and 
use, the thing patented, within and throughout 
some specified part or portion of the United States. 



I40 PATENTED INVENTIONS. 

Such right must be an exclusive sectional right, 
excludifig the patentee therefrom. 

'^ A licensee is one who has transferred to him in 
writing, or orally, a less or different interest than 
either the interest in the whole patent, or an undi- 
vided part of such whole interest, or an exclusive 
sectional interest." ^ 

"A license is given to a partnership, composed 
of several persons, and the construction of a 
license in writing depends upon the same general 
rules as the construction of other written contracts. 
For example, it is to be construed in the light of 
the circumstances which surrounded its execu- 
tion." ^ 



^ " Attorney's Manual." 

2 " Walker on Patents," § 306. 



CHAPTER V. 

INFRINGEMENT OF PATENT-RIGHTS. 

Comparatively few inventors are aware of the 
enormous amount of litigation that patents give 
rise to, either in upholding their validity in a legal 
action, where a charge is made of the infringement 
of one or more claims of a prior patent, or in legally 
prohibiting unlicensed parties from trespassing 
upon the claims of a patented invention in their 
own line of manufacture. An inventor very natur- 
ally takes it for granted that a patent is in itself a 
prima facia evidence of novelty and utility, and 
will give absolute protection to the invention for 
the full term of seventeen years. But the intrica- 
cies of patent-law render such protection very 
uncertain, and, the fact is, a machine, device, or 
process may h^ patentable ^ and yet in a legal action 
be held by the court to be an infringement on a 
prior patent. " The question of novelty in the 
patent-office, when an applicant seeks a patent on 
his invention, is presented in a different aspect in 
a patent suit. In the patent-office, the question 
often is, whether o. patentable improvement hdishe^n 
made on a prior patent for a similar invention. 
But in infringement suits the question would be — 
141 



142 PATENTED INVENTIONS. 

whether two things are substantially identical^ with- 
out reference to the practical working result." ^ 
— " Authorities concur that the substantial equiva- 
lent of a thing, in the sense of the patent-law, is the 
same as the thing itself, so that if two devices do 
the same work in substantially the same way, and 
accomplish substantially the same result, they are 
the same^ even though they differ in name, form 
and shape." '^ Moreover, it is not the practice of 
the patent-office to conduct the examinations so 
rigidly, as to deny the allowance of patents upon 
inventions, which, in any way, or in any sense, tres- 
pass upon claims of prior patents; but only so far 
as the patent-office laws compel them to so with- 
hold the allowance of a patent. For instance, in a 
patent-office decision, rendered by a commissioner 
of patents, relative to an objection made by one of 
the examiners of the patent-office, that the claims 
of an application filed were litigous and on their 
face would draw the inventor into a law-suit, the 
commissioner held " that it was not the province 
of the patent-office to save law-suits by unduly 
imposing limitations upon the claim." ^ *^ It must 
be remembered too, that any decision of the patent- 
office^ however ably and honestly made, is liable to 
be set aside by the courts, and that decision must 
stand.*' ^ So that the right conferred by letters 

^ " Patent and Court Record." 
2 " Walker on Patents, § 354." 
^ The Inventive Age. 



INFRINGEMENT OF PATENT-RIGHTS. I43 

patent has been very pertinently defined ** as merely 
the right of the patentee to defend his rights." 

What Constitutes an Infringement, 

" It is an infringement of a patent to either make, 
sell, or use, without legal permit, anything which 
forms the subject matter of any claim or claims in 
a valid patent, and the act of an infringer is noth- 
ing but the simple one of a person taking and 
using another's property without authority, to his 
own advantage, and incurring a liability to com- 
pensate the owner." ^ This is sometimes done 
through ignorance, but will be an act of infringe- 
ment all the same, as the law holds, that even if 
the infringer is ignorant of the existence of the 
patent at the time he infringed it; or, knowing of 
its existence, was ignorant that in his manufacture 
he was trespassing upon its claims, he is still cul- 
pable." ^ 

** Again, the infringement of a patent is often done 
intentionally, with the idea of profiting from the 
improvement by altering the invention in one or 
more ways, but still retaining the same results. 
The inventor's only hope of redress is through liti- 
gation, which is both tedious and costly, and the 
value of the patent often does not warrant the 
expense. This point the infringer has probably 
taken into consideration when he decided to make 
the attempt to * crowd out * the true inventor. 

1 " Walker on Patents," § 419. 2 § 377 



144 PATENTED INVENTIONS. 

" A person cannot make articles like a patented 
article for simply his own use, or for exportation 
from the country, without infringing. 

" When infringing articles are 7nade, but not put 
into use or on sale during the life of a patent, their 
use can be enjoined after the expiration of the 
patent. 

How to Determine the Infringement of a Patent, 
" In deciding whether a certain article is an 
infringement upon a prior patent, it must be com- 
pared separately with each claim in the specifica- 
tions; as if any claim is infringed, the patent is 
infringed. ' Often it is held to be an infringement, 
when the claim is not technically infringed.* 
For instance, a patent was owned for a combina- 
tion lamp-burner and lamp-chimney. A 'com- 
pany,' who made and sold only the burner, were 
held to be infringers by the court. Again, a man 
held a patent on a cartridge; while a factory 
started the manufacture of a certain kind of gun, 
designed for the use of this cartridge, and were 
held to be infringers. 

" A large proportion of the patents now granted 
are based upon * Combination Claims,' and it is 
these patents that offer the best opportunity of 
change in some way, so as to evade the laws of 
infringement, and give rise to the greater propor- 
tion of patent suits." ^ 

1 "Walker on Patents." 



INFRINGEMENT OF PATENT-RIGHTS. I45 

The Inventive Age says: '* Patents are awarded 
on each successive step in the evolution of any art 
or machine, although each succeding step may be 
an infringement on the preceding one. The explan- 
ation is, that if an inventor makes an improvement 
on an invention, he is entitled to a patent on such 
improvement. But the right to use his improve- 
ment does not carry with it the right to use the 
invention improved upon. Neither can the prior 
patentee use the patented improvement; both are 
accountable to each other. But the man who holds 
Wi^ foundation patent is master of the situation, for 
he can possibly do without improvement, while 
the improver cannot do without the generic or 
original idea.'* 

Some of the most valuable patents now in 
operation have been contested for one cause or 
another. Inventors are not generally aware of 
the large number of applications for patents 
made annually in many different branches of in- 
vention. For instance, there are two thousand 
patents on improvements in telephones ; and 
during one month recently, there were over one 
hundred patents granted on new devices for car- 
coupling, making over six thousand car-coupling 
patents on file in the patent-office at the present 
date. Many of these, if brought into practical use, 
would be found to have infringed upon some prior 
claim or claims. In consideration of these contin- 
gencies, which are always liable to arise and deter 



146 PATENTED INVENTIONS. 

the working of a patent, the inventor will readily see 
the advantage to be gained in having a ^' Search" ^ 
made at Washington before taking any steps to- 
ward bringing the invention into practical use. In 
case it is found that the patent will be liable to 
infringe some other prior claim, a legal permit to 
proceed with the manufacture of the invention 
can generally be procured from the owner of the 
prior conflicting patent, by the payment of a small 
royalty. 

A Few Laws in Regard to Co7nbination Clai7iis. 

** Addition to a combination will not avoid 
infringement, and a person cannot use another's 
patented invention simply because he has made an 
improvement upon it. A device may embody a 
very high degree of ingenuity, and yet retain the 
same working principles shown in a previously 
patented one, and it may prove to be even a better 
thing than the one actually covered by a patent, 
but the superiority may have arisen from the 
superiority of the material or of the workmanship 
used in constructing the specimen under inspection, 
and attention should be taken from the difference 
in utility, to the cause of that difference."^ An 
article in the New York Sun says: ^' The fierce and 
indescribable litigation over Mr. Edison's incandes- 
cent lamp patents, in which the Edison patents in 

1 See Chapter II, Part First. 

2 ** Walker on Patents." 



INFRINGEMENT OF PATENT-RIGHTS. I47 

the United States have generally been upheld, has 
developed all manner of new incandescent lamps, 
whose object is to avoid the broad claims of these 
patents. Striking ingenuity has been shown, and 
each week sees some new-comer, whose merit 
often consists in its oddity. As the Edison patent 
includes an all-glass globe for the filament, some 
makers have put lamps in the market, in which 
part of the bulb is not of glass. The Edison 
patent calls for ' leading-in * wires, and one manu- 
facturer has dispensed with them by pasting silver 
powder on the glass, and fusing it, thus making 
conducting strips of glass, where the * wire ' would 
normally be. The Edison patent covers the fila- 
ment burning in a vacuum, and more than one of 
the lamps put forward, therefore, have an inert gas 
in the bulb. It is claimed this makes a better lamp. 
Some two or three million dollars have been spent 
in incandescent lamp litigation since 1884. In all 
such cases, the * Court, in forming their opinions, 
take into consideration the deliberate intention of 
unlicensed parties to make use of patents owned 
by others.' " 

" A charge of infringement will not be averted 
when there is substituted an equivalent for any 
part of the combination covered by the claims of 
the patent. But it will not be an infringement to 
substitute something which is not an equivalent."^ 



1 " Walker on Patents," § 350. 



148 PATENTED INVENTIONS. 

" In the case of the electric light, it had been 
known for years that if a carbon-rod be placed in 
an exhausted glass receiver, and a current of elec- 
tricity passed through it, the carbon glowed with 
an intense light. But the light w^as useless, for the 
reason that as soon as the carbon lighted, the glass 
receiver burst with the intense heat. Edison con' 
ceived the idea that if the carbon filament was made 
fine enough, it would still supply abundant light, 
while avoiding the great heat, and for this concep- 
tion he was granted a patent, which has been up- 
held by the courts, although it has been contested 
on the ground that the mere introduction of so 
small a difference, as the replacement of a thin 
rod by a fine filament, was so slight an item, that it 
could not be protected by a patent." ^ 

*^ When the patent contested is strictly primary, 
and especially if it is extremely useful, then the 
word ^ substantial ' in court will be made to cover 
differences alike numerous and important, and even 
highly creditable to the infringer who invented 
them. Probably the most striking instances of the 
latter kind on record are to be found in the ^Tele- 
phone Cases.* The fact that an invention meets 
with widespread public favor has an affirmative 
weight in upholding the patent, and has been the 
means of winning many patent suits at law." ^ 



^ New York Churchman. 

2 " Walker on Patents," § 362, 



INFRINGEMENT OF PATENT-RIGHTS. I49 

Those who are E?ititled to Bring Action for Infringe- 
7nent of Patents. 

**The complainant in an action based on an in- 
fringement of a patent may be the patentee, or the 
sole assignee of that patent. Any grantee under 
a patent may sue alone for any infringement 
committed within his territory.^ But actions at 
law, brought by assignees or grantees, for infringe- 
ment committed prior to the time they obtained 
title, must generally be brought in the name of the 
person who held the legal title to the patent-right 
when it was infringed b}^ the defendant.'* ^ 

*' Owners-in-common of patent-rights must sue 
jointly for their infringement. This rule applies 
where a patentee has assigned an undivided part 
of his patent^ and also to cases where the owner 
of the patent has granted an undivided interest 
therein, in that part of the territory of the United 
States wherein the infringement sued upon was 
committed. In the first of these cases, the action 
must be brought by the patentee and assignee 
jointly; and, in the other case, it must be jointly 
brought by the owner of the patent and his 
grantee." ' 

" Licensees under patents cannot bring actions 
for their infringement. When a person has received 



^ Revised Statutes. 

2 " Walker on Patents," § 395. ^ § 399. 



150 PATENTED INVENTIONS. 

an exclusive license to use or to sell a patented 
invention within a specified territory, all actions at 
law for infringement must be brought in the name 
of the owner of the patent-right, but generally 
for the use of the licensee. Where an exclusive 
licensee, who pays royalties in proportion to the 
extent of his use or his sales of the patented inven- 
tion, allows infringers to in any wa}^ have the use 
of these inventions, without interference from him, 
the owner of the patent-right may sue those 
infringers in his own name and for his own use." ^ 

Those Who Can be Held Liable for Infringements. 

Walker says : '' Whoever directs or requests 
another to infringe a patent, is himself liable to an 
action for the resulting infringement. 

** When the owner of a patent is himself an in- 
fringer of a licensee's exclusive right to use or sell 
the invention covered thereby, no remedy at law 
can redress the wrong. The licensee cannot bring 
such an action in his owti 7iame in that case any 
more than in an}^ other. But the licensee can sue 
the owner in a Court of Equity. W^hen several 
persons cooperate in any infringement, all of those 
persons are, of course, liable therefore. A private 
corporation may be held liable, and the liability of 
a city for infringement has been affirmed, and that 
of a county has been denied. What remedy the 



1 « 



Walker on Patents," § 400. 



INFRINGEMENT OF PATENT-RIGHTS. I5I 

patentee has when the government makes or uses 
specimens of his patented invention without his 
consent, is a question to which no positive answer 
can at present be given." 

Actions at Laiv and Actio7is in Equity. 

The only function of "- actions at law " in patent 
cases, is to give damages ior past infringements of 
patents. The principal function of action in equity 
in such cases is to restrain future infringements of 
patents by means of the writ of injunction. ^^ A 
majority of the States have abolished all common 
law actions in patent cases, and have substituted 
for the whole of them a single form of proceeding, 
which they call a * civil action.'" ^ 

The inventor is usually not only ignorant of the 
many laws relating to the infringement of patents, 
but is also quite unprepared for the '^ dangers of 
infringement " that are apt to threaten every 
patent that is successfully developed. Manufac- 
turers, however, thoroughly understand this point, 
and contracts made out between the manufacturer 
and owner or patentee are generally drawn up so 
that the capitalist can draw on the inventor's share 
to pay the expenses of litigation. 

" In large and well-established industries, where 
the patent is owned by the manufacturer or capi- 
talists, the protection of patent-rights is considered 



^ Walker, § 572, § 421, 



152 PATENTED INVENTIONS. 

one of the largest items of expense. Many fac- 
tories have a regularly organized legal department 
in connection with their business. One of the 
managing directors of the National Cash Register 
says: * The company are the owners of over sixty 
patents, with others in the patent-office not yet 
acted upon, and these patents are defended at an 
enormous cost.' Besides their regular legal depart- 
ment, they have a legal representative in each 
jurisdiction where they have litigations pending, 
and retain the services of legal firms in many of the 
largest cities, at a large annual outlay.'* ^ 

Patent suits are proverbially long and tedious, 
as well as expensive, sometimes dragging along 
through the whole life of the patent. Edison says: 
" I could not, for this reason, have made anything 
out of my patents, had I not had large capital back 
of me." His most valuable patents have been the 
subject of prolonged litigation. In the " Incandes- 
cent Lamp Suit" — previously referred to — the 
United States Court of Appeals affirmed the deci- 
sion of the lower court, in October, 1892, which 
entitled Mr. Edison to this patent. The suit lasted 
seven years; the patent had six years longer to run, 
and was valued at a million dollars. It may be 
well to quote the fact here, that "appellants are 
deprived of the right to appeal to the Supreme 
Court, unless the amount involved aggregates a 
specific sum,'' 

^ The Inventive Age, 



INFRINGEMENT OF PATENT-RIGHTS. 153 

The inventor of a relief valve in steam fire-engine 
pumps, had his patent infringed by the use of his 
device in the fire departments of many of our cities. 
He brought suit against one of these cities, years 
ago, and his patent was finally sustained by the 
courts after pending fourteen years, and a fortune 
spent on both sides in counsel fees. The city was 
also held responsible to the inventor for the sum 
of $2,927,000, for the use of his patented device on 
fire engines for nearly the whole term of the pat- 
ent."^ 

" It is against the policy of the law that the 
owner of a patent-right should lose by reason of 
its infringement; yet one of the amendments of 
patent-laws, now under consideration, is, ^' No 
damages or profits shall be recovered in a suit for 
infringement, except such as accrue within the six 
years last preceding the bringing of the suit."^ 

** No person manufacturing or dealing in pat- 
ented articles can recover damages from the 
infringement of the article, unless he stamps the 
word * patented ' thereon, or unless he gives notice 
in another form and to the same effect." ^ 

A Court of Patent Appeals. 
A few abstracts from articles in The Inventive 
Age, upon this subject, are as follows: — "The fre- 



^ " Appleton's Annual Encyclopedia." 
2 '♦ Walker on Patents." 
^Decision of the Supreme Court. 



T54 PATENTED INVENTIONS. 

quent necessity for these long and expensive pat- 
ent suits, renders the establishment of a ' Court of 
Patent Appeals ' by Congress most earnestly to be 
desired. This court for the determination of pat- 
ent cases would promote the interests of both the 
inventor and the public, and do away with the 
long delay that now results from an appeal to the 
courts; and which is unavoidable as long as so 
many of these cases are relegated to the United 
States Supreme Court, Vv^hich, it is stated, is already 
several years in arrears in the work. The court 
should be composed of men who rank as the best 
patent lawyers of the country, and give their time, 
attention and study to only this department of 
law. This Court would have jurisdiction over 
appellate cases coming from the Circuit Court, the 
Supreme Court of the District, and the Commis- 
sioner of Patents." ^' It is not proposed to make it 
of last resort. If a sufficient amount is involved, 
cases can be carried up from it to the United States 
Supreme Court. By the establishment of this 
court, infringement cases might be settled within 
a few months from the commencement of a suit, 
and thus enable the inventor or corporation to 
reap the benefit letters patent should allow them, 
for the w^hole term of the grant, when they are 
found entitled to it." 

"With the large amount of patent business the 
courts are now called upon to dispose of annually, 
the recognized fact is not to be wondered at, that 



INFRINGEMENT OF PATENT-RIGHTS. I55 

of late years the decision of the courts on patent 
cases have been almost as contradictory and un- 
certain as the decisions of patent-office examiners.'* 

Infringements of Patents May be Specifically Classed 
Under Four Different Heads, 

1. Infringement upon patents for machines and 
manufactures. 

2. Infringement upon patents for composition of 
matter. 

3. Infringement upon patents for process pat- 
ents. 

4. Infringement upon patents for design patents. 

A few general rules from Mr. Walker's '^Text- 
Book of Patent Laws," are as follows. They will 
convey an idea of what legally constitutes infringe- 
ment under these several divisions.^ 

A Patent for a Machine or Manufacture 

" is infringed by him, who, without ownership or 
license, makes, uses, or sells any specimen of the 
thing covered by any claim of the patent, even 
if it be but 07ie claim. It is not an infringement of 
a patent to make, use, or sell, any specimen of any 
invention described^ but not claimed therein, because 
a patent covers only what it claims. 



^ The reader is referred to his complete work for more 
explicit knowledge upon this subject. The rules will be 
found illustrated by many cases acted upon by the courts, 
with their decision. 



IS6 PATENTED INVENTIONS. 

" Any person may accomplish the result performed 
by a patented thing, without infringing the patent, 
if he uses means substantially different from those 
of the patent. So, also, on the other hand, the 
respective results of patented, and alleged infring- 
ing machines or manufactures, may be entirely 
different, and still be liable to the charge of 
infringement. 

*^ This rule results from a well-established point 
of law — that it is an infringement of a patent to use 
any machine or manufacture claimed therein, 
though such use is for a purpose which is not men- 
tioned in the patent." 

A Change of Form, 

"resulting in a change ot construction, but in no 
change of action or utility, does not avoid infringe- 
ment. Even where a change of form involves a 
modification of the action, and perhaps an improve- 
ment in point of utility, it did not operate to avoid 
infringement." 

Changing the Relative Position 

^* of the parts of a machine or manufacture, though 
the same respective functions are performed after 
the change as before, will beheld to bean infringe- 
ment; although, on the other hand, it will not be an 
infringement, when changing the relative position 
of the parts so changes the functions of the parts 
that the machine acquires a substantially different 



INFRINGEMENT OF PATENT-RIGHTS. 157 

mode of operation, even although the result of the 
machine remains the same.'* 

Substitution of an Equivalent 

*^ for any ingredient of a combination covered by 
any claim of a patent, cannot avert a charge of 
infringement of that claim. But it is allowable to 
substitute something which is not an equivalent. 
Combination patents would generally be valueless 
in the absence of a right to equivalents; for few 
combinations now exist, or can hereafter be made, 
which do not contain at least one element, an 
official substitute for which could readily be sug- 
gested by any person skilled in the particular art/' 

There are Two Tests of Equivalency, 

^^Eirst. — Identity of function. Second. — Substan- 
tial identity of the way of performing that function. 
The fact that one thing performs the same func- 
tion as another, though necessary, is not sufficient 
to make it an equivalent thereof. Function must 
be performed in substantially the same way by an 
alleged equivalent, as by the thing of which it is 
alleged to be an equivalent, in order to constitute 
it such. But one thing may be an equivalent of a 
thing in one environment, and not such an equiva- 
lent in another situation. Springs and weights 
are generally equivalents; but when the environ- 
ment is such that a spring will operate successfully 
while a weight will not so operate, then they are 
not equivalents," 



158 PATENTED INVENTIONS. 

Infringement on Patents for Composition of Matter. 

'' Infringement in such cases depends upon same- 
ness or equivalence of ingredients; and upon sub- 
stantial sameness of the proportion of these 
ingredients. 

" This rule is applicable to composition of matter 
in general, whether they consist of chemical unions, 
of mechanical mixtures, or of metal amalgams." 
Ofnissions of One or More 

" of the ingredients of a patented composition of 
matter avoids infringement as truly as omission of 
one of its parts avoids infringement of a patent for 
a combination of mechanical devises." 

Addition to a Patetited Composition of Matter 

'' of an ingredient, which the patent purposely 
avoided, and which, when added, substantially 
changes the character of the composition, also 
avoids infringement. 

** But an addition which results in no substantial 
change of character, and which was made merely 
for the purpose of an attempt to evade the pat- 
ent, will not have that effect." 

Changes in the Proportions 
" of the ingredients of a composition of matter will 
not avoid infringement of a patent for such a com- 
position, where those changes do not affect its 
essential character in any way more important than 
to increase its bulk more than they increase its 
cost," 



INFRINGEMENT OF PATENT-RIGHTS. 159 

Infringement of Process Patents, 
"A patent for a process is infringed by one who, 
without a license, uses substantially the process 
which the patent claims; whether or not he uses 
substantially the apparatus which the patent de- 
scribes. A case is cited by Mr. Walker, where the 
Supreme Court found all the different steps of an 
infringed process in the defendant's doings, al- 
though confessedly the result was obtained by 
different means and process regulated on different 
principles." 

No Process Patent is Infringed 

^* when any one of the series of acts which con- 
stitute the process is omitted by the supposed in- 
fringer, unless some equivalent act is substituted for 
the omission." 

Infringement of Design Patents. 

" A design patent is infringed by any design which, 
to observers in general, has the same appearance as 
that of the design covered by the patent. The 
fact that an analysis of two forms of designs dis- 
closes a difference between them, is therefore insuf- 
ficient to show lack of that substantial identity of 
appearance, which constitutes infringement. Such 
a question of identity i^ to be decided on the basis 
of the opinions of average observers, and not upon 
the basis of the opinions of experts." 



CHAPTER VI. 

REISSUE OF PATENTS. 

When an inventor's efforts in manufacturing or 
disposing of a patented invention, within two years 
after the allowance of the patent, develop mis- 
takes in the defined claims of the patent which 
render it either invalid or inoperative, in whole or 
in part, a correction of the faults will be allowed 
through a reissue of the patent. But this reissue 
will only be granted for the same invention which 
was originally patented, and to cure defects which 
happen by accident, inadvertence, or mistake, ac- 
cording to the statute, viz. '^ Whenever any patent 
is inoperative or invalid, by reason of a defective or 
insufficient * specification,* or by reason of the 
patentee claiming as his own invention or discovery 
more than he has a right to claim as new; if the 
error has arisen by inadvertence, accident, or mis- 
take, and without any fraudulent or deceptive in- 
tention, the commissioner shall on the surrender of 
such patent and the payment of the duty required 
by law, cause a new patent, and in accordance 
with the corrected specfications, to be issued to 
the patentee." 

But the fact is to be noted, " that no new matter 



REISSUE OF PATENTS. l6l 

shall be introduced into the specifications. Nor in 
case of a machine patent shall the models or draw- 
ings be amended except each by the other; but 
when there is neither model nor drawing, amend- 
ments may be made upon proof satisfactory to the 
commissioner that such new matter or amendment 
was a part of the original invention, and was 
omitted from the specifications by inadvertence, 
accident, or mistake, as aforesaid."' ** The patent 
so reissued, together with the corrected description 
and specification, shall have the same effect and 
operation in law, as though the same had been 
originally filed in such corrected form. These re- 
issued patents cannot be affected, in point of nov- 
elty, by anything done after the date of the orig- 
inal invention. 

" Novelty still dates from the original invention."^ 
Faults in the original application which makes 
patents reissuable are, according to Walker, four in 
number — i. Defective description; 2. Insufficient 
description ; 3. Defective claims ; 4. Insufficient 
claims. 

Inoperativeness Arising from Insufficient Claims. 

If an original patent shows on its face that it did 
not have either of these faults, it is the duty of the 
court to hold any reissue thereof to be void. The 
word defective, and the word insufficient are not 



* Revised Statute. 
2 " Walker," § 254. 



l62 PATENTED INVENTIONS. 

synonymous in the statute. A description may be 
complete, while it is obscure in some of its parts; 
in such a case it is defective. On the other hand, 
it may be perfectly clear as far as it goes, while 
omitting all reference to some part of the thing 
described. In such a case it is insufficient. So, 
also, a claim may 7nistily cover the whole invention 
described; but being liable to be misunderstood, it 
is defective. On the other hand, it may be entirely 
clear, while it is narrower than the invention, and, 
therefore, insufficient to secure and cover the latter. 
One or more of these faults in the original letters 
patent must have been caused by inadvertence, 
accident, or mistake, in order to obtain a reissue.^ 

When Patent is Inoperative by Reason of Insufficient 
Clai^ns, a Reissue may be Granted. 

" It is a very common error among patentees to 
believe, when they find the patent inoperative, that 
a reissue can be obtained for all that he might 
have applied for and invented in the original 
patent, when, in reality, a reissue can only be 
granted for the same invention which was origin- 
ally patented. But, if the claims were made too 
few or too narrow in the original patent, either 
because the patentee was mistaken about the state 
of the art existing at that time, or because the 
patentee or his solicitor when concerting the claims 



1 it. 



Walker," §217. 218. 



REISSUE OF PATENTS. 163 

inadvertently failed to make them as extensive as 
the invention, then the claims can be broadened by 
a reissue. Nothing but a clear mistake or inad- 
vertence, and a speedy application for its cor- 
rection is admissible, when it is sought merely to 
enlarge the claim." ^ 

Erroneous Opinion of the Commissioner. 

" A reissue is also allowed when the patent was 
inoperative by reason of insufficient claims, if these 
claims were made too narrow for the reason that 
the commissioner refused to allow them made 
as broad as they ought to have been, on account 
of an erroneous opinion entertained by him.'*^ 

Patents Reissued by the Commissioner Without 
Statutory Grounds. 

" The Supreme Court has recognized the fact 
that patents have been reissued in some cases 
where there was no statutory ground therefor; 
that is to say, in some cases where the patents sur- 
rendered were neither invalid nor inoperative, or if 
so, were not by reason of a defective or insufficient 
specification; or, if invalid or inoperative, by reason 
of a defective or insufficient specification, were not 
so because of inadvertence, accident, or mistake.'* ^ 
When such reissues are granted, the courts are 



1 *' Walker," § 220. ^ § 220. ' ? 221 



164 PATENTED INVENTIONS. 

not obliged to accept them as final, although the 
decision of the commissioner on this point is sup- 
posed to be correct, '^ for the reason that he has no 
jurisdiction to grant any reissue in the absence of 
such a statutory ground; and because the statute 
does not make him the final judge of his own juris- 
diction."^ Consequently such reissued patents 
would be held void if brought into litigation. 

Who ca7i Reissue a Patent. 

^' Executors, administrators, or assigns have the 
same right to surrender and reissue a patent that 
the patentee himself has, excepting that the appli- 
cation must be made, and the new specifications 
be signed by the inventor himself, if living." 

If a patent is owned jointly by two or more pat- 
entees, or two or more assignees, all the owners 
must join in a reissue, or must ratify it, or it will 
be void; but neither grantee or licensee are required 
to do either. Tlie right of a patentee or assignee 
to receive a reissue is not affected by his having 
made grants, or issued licenses under his patent; 
but where a patentee grants away his rights in a 
part of the territory of the United States, and 
afterwards conveys the residue to another vender, 
it is doubtful whether that vender is entitled to 
apply for a reissue. Grantees may continue to 
hold their rights under an original patent after it 
is surrendered and reissued by the patentee or 

^ Walker, § 223, §335. 



REISSUE OF PATENTS. 165 

assignee; or they may take corresponding rights 
under the reissued patent." ^ 

The Time a Reissue Should be Applied For. 

Many applications for reissue are lost every year 
for the reason that the patentee holds his patent 
for years before he understands that it has reissu- 
able faults. To be successful, it is really necessary 
to make application for a reissue as soon as pos- 
sible after the patentee finds his patent inoperative 
for any of the reasons that entitles him to a reissue, 
and Walker says: " The right to obtain a reissue 
for broadejied claif?is, is lost by a long lapse of time 
after the date of the original, and before the appli- 
cation for that reissue, although just the length of 
time that may be allowed has never been decided," 
but is generally understood to be but two years. 

Reissue Not Granted for a Patent that has Expired. 

No reissue can be granted of a patent after its 
final expiration, even when that expiration resulted 
from the fact that the same invention had been 
patented in a foreign country before it was pat- 
ented in the United States, thus ending the life of 
the home patent before the expiration of the seven- 
teen years entitled by law. 

Average Number of Reissues Allowed Annually. 

The last Commissioner's Report gives ninety five 
applications for reissue during the year, of which 



^ " Walker," § 250, § 252, § 253. 



l66 PATENTED INVENTIONS. 

sixty-four were granted. For the preceding year 
there were one hundred and twenty applications 
for reissues, and ninety-nine granted. 

Fees. 

The government fee for filing a reissue appli- 
cation is thirty dollars. No final fee required. 
Attorney's fee from twenty-five to thirty dollars. 



